PLJ 1983 Judgments

PLJ 1983 CR349 PLJ 1983 CR 349 Present : sardar muhammad, 'J SHAHMAND alias SHAMAN—Appellant versus THE STATE—Respondent Criminal Appeal No. 1293 & Cr. Rev. No. 1030 of 1980. heard on 22-5-1983. (i) Evidence Act (I of 1872)—

S. 33—Evidence given in judicial proceeding—Relevancy for pur­ pose of proving same subsequently—Witness already dead befor, recording of evidence— Held: Provisions of S. 33 of Evidence Au having already been complied with, no benefit to be given to ap­ pellant for non-production of such witness—Criminal trial—Evidence. [P. 353] A (ii) Criminal Trial—

Witness—Relationship inter se—Held: Mere fact of witnesses getting together for doing some job of 3rd person not to develop relationship between two. [P. 354] B (Hi) Criminal Trial— Witnesses—Testimony of — Discrepancies in evidence of eye­ witnesses and some slight improvements made by them not mitigat­ ing value of statements in any manner— Held: Eye-witness account not to be-discarded in circumstances. [P. 354] C (iv) Pakistan Penal Code (XLV of 1860)- ——Ss. 302 & 325—Murder—Offence of—Evidence—Appreciation of—Motive alleged against appellant not making out case of development of inimical relations between appellant and deceased— Appellant even otherwise having no intention or knowledge to kill bis own uncle—None of injuries except that on arm causing any • fracture— Held : Conviction u/s. S02 to be set aside and appellant to be convicted under S. 325, PPC. [P. 354] D 1969 SCMR 644 & 1969 PCr.LJ 1473 rel. Dr. Khalid Ranjah, Advocate for Appellant. Mr. Zulfiqar Haider, Advocate for A. G. Mr. A. W. Butt for Complainant. Dates of hearing : 21/22-5-1983. judgment Appellant Shamand alias Shaman (21) has been convicted by the Addl. Sessions Judge, Sahiwal vide order dated 27-9-1980 for having committed the murder of Shah Muhammad son of Rehana and sentenced to imprison­ ment for life. He has also been sentenced to pay a fine of Rs. 5000/- in default whereof to suffer 2 years R. I. The fine, on realisation, has been directed to be paid as compensation to the heirs of the deceased. 2. Muhammad Luqman complainant has filed Criminal Revision No. 1030/80 for enhancement of sentence of the respondent. Since both the mailers arise oui of the same judgment, they are being disposed of by one judgment. 3. The occurrence in this case took place at 9 a.m. on 27-7-79 near the tubewell of Sardar Muhammad Latif in the area of village Asadullah Pur, Police Station Depalpur. Formal FIR Ex. PC/1 was recorded at the Police Station at 11-45 a.m. by Asghar AH, M.H.C. (PW 3) on the same day on receipt of statement Ex. PC made by Luqman PW 6, son of the deceased at 10-30 a.m. to Khurshid Ahmad, S.I. (not produced) at Dalmain Gunj, where the latter was present in connection with the investigation of some other case. 4. The prosecution case is that on the day of occurrence the com­ plainant and the deceased were going to collect paddy seedling. When, at about 9.00 a.m. the deceased reached near the tubewell of Sardar Muhammad Latif, Shamand appellant came out of his house armed with a Danda and started giving injuries on the head and other parts of the deceased. On the noise raised by the deceased. Luqman complainant accompanied by Muhammad Amin PW 6 and given up PW Abdul Ghafoor, who were following him, reached the spot. Seeing them the appellant ran away. Shah Muhammad, who had fallen on the ground after receiving injuries, died on the spot. 5. Motive for the occurrence was that wife of Abman, brother of Shamand appellant had returned to her father's house in Bahadur Nagar because of some family dispute. 10-12 days prior to the occurrence the ather of Mst. Manzuran, (the wife of Ahman) came to their village with a divorce deed and asked the appellant and his brother as to why his daughter has been divorced. The appellant and his brother suspected that this divorce was forged by Shah Muhammad deceased. 6. The other motive was that the appellant wanted the hand of daughter of Muhammad Siddiq son of the Shah Muhammad deceased for deep on the left side of wound 2 cmx3 mm x through and through on the (2) A lacerated left ear, (3) Multiple conclusions with swelling in an area of 10 cmX 8 cm on the outer and upper part of the left neck. (4) An abrasion 1 cmx 1 cm on the right side of forehead. (5) A lacerated wound Icmxl cmxskin deep on the back and left side of head. (6) A lacerated wound 4^cmx2 cmx Muscle deep on the back and upper part of left forearm. Both the bones under-neath were fractured. According to his opinion death was due to shock and internal haemor­ rhage, as a result of injuries No. 1 and 6. In cross-examination he has admitted that there was no fracture underneath injury No. 1, and that chances of survival are more when there is no fracture of scalp. He also admitted that normally the injury of the type of injury No. 6 is neither dangerous nor fatal. 9. The appellant in his statement under Sec. 342 Cr.P.C. denied the allegations. He has also denied to have got recovered bloodstained Sota P. 5. In answer to question, 'why this case against you and why the witnesses have deposed against you', he stated ; "I have been falsely implicated in this case. Muhammad Siddiq brother of Luqman had tiled an application u/s. 25 of the Guardian & Wards Act for the custody of his children against Mit. Hanit'an one year prior to the present occurrence. 1 use to help Mst. Hanifan against Siddiq. As such Luqman is opposed to me and has implicated me in the present case." In answer to the question, 'have you anything else to say', he stated ; "I am innocent. Sardar Muhammad Latif Dogar is supporting Luqman and as such he got the service of Amin, PW and produced him against me as a PW. Shah Muhammad demanded Rs. 1800/- from my father and he had been insisting for the payment of that money but my father was not acceding to the demand of Shah Muhammad deceased. Shah Muhammad was an old man. He in fact went to onr house and had a quarrel with my father and mother ar.d abused them. My father and mother retaliated and had a fight -with him. Shah Muhammad deceased received these injuries at the hand of my father and mother. I was not present at the time of the occurrence, when I came to my house 1 learnt this thing from my parents. Not a single witness had witnessed the occurrence but they bore grudge against me as explained above and as such just implicated me falsely in the present case." He opted to produce defence vide statement dated 10-8-1980 but on 16-9-80 he stated that he does not want to produce any defence evidence. 10. Learned counsel for the appellant has raised the following con­ tentions :— (a) that non-production of Khurshid Ahmad, S.I. who had recorded the F.I.Restatements of the P Ws. under Section 161 Cr. P. C. arrested the appellant and effected the recovery, at the trial has materially prejudiced the appellant. Reliance in this regard has been placed on A.K.M. Rtza and others . State (PLD 19S8 Dacca 111), wherein the case was remanded for recording the evidence of the Investigating Officer ; and Muhammad Sharif and another v. The State (1972 p.Cr.L.J. 1259) wherein the appellant was acquit­ ted; (b) that secondary evidence produced in this case through the state­ ment of Asghar Ali, Head Constable PW 3, has not been done in accordance with law. In this regard, learned counsel has cited : (i) Chatnhal Singh v. Emperor [AIR (33) 1946 P.C. 1]. (i/) Allah Ditto v. The State (PLD 1958 S.C. 290). (Hi) Abdul Ghani and others v. The State (PLD 1959 Dacca 944). (iv) Farid Khan v. The State (PLD 1969 Peshawar 1). (v) Muhammad Shaft and 3 others v. State (PLD 1972 Lahore 661). (vl) Huxsaln Bakhsh v. The State, (1971 P.Cr.L.J. 1331). (c) that since the learned trial Court has not believed the evidence of motive, no credence can be given to the other prosecution witnesses as the motive alleged by them has not been proved : (d) that the eye-witnesses had not seen the occurrence and they have been set up falsely : (e) that the evidence of production of bloodstained Sola P. 5 by the appellant before the Police cannot be given any credence, as it is not in consonance with the conduct of the appeUant who has denied the charges ; and (/) that even if it is accepted that the appellant had attacked and caused injuries to the deceased he cannot be held liable for having committed the murder of his uncle, at she best he can be held liable for having intended to have caused grievous injuries to the deceased. In this regard reliance has been placed on Sobdar and three others v. The State (1969 P.Cr.L.J, 1473). 10. Learned counsel for the complainant/State have controverted that arguments advanced by the learned counsel for the appelianr, and have argued that the prosecution has been able to prove the motive and that the learned trial Court has discarded the evidence of motive for insufficient reasons. It is contended that the complainant in this case is first cousin of the appellant and there is no reason to disregard his evidence while Muhammad Amin PW is an independent witness. With regard to the objection of not examining Khurshid Ahmad, S. i,, it is argued that since he had died, the only course left open was to have produced secondary evidence which has been led through a witness who had served with him and was well versed with his signatures and handwriting. It has been rgued that there is no force in the contention of the learned counsel for the appellant that the appellant is not liable for having intentionally committed the murder of Shah Muhammad (deceased). 11. The contention of the learned counsel for the appellant that the process of law was not observed nor due care and diligence was shown by the learned trial Court before allowing the prosecution to produce the secondary evidence regarding the evidence of Kburshid Ahmad, S. I,, has no force in view of the fact that the case of the prosecution was not that Khursbid Ahmad. S. I. was not available, the prosecution case is that he had died, Asghar Ali, Head Constable PW3 who has deposed regarding the death of Khurshid Ahmad, S. I. was not cross-examined, which means that the accused did not contest the statement of the witness that Khurshid Ahmad, Sub-Inspector had died. In the presence of the evidence that P. W. Kbursnid Ahmad, Sub-Inspector had died, the learned trial Court had to proceed in accordance with the provisions of Section 33 of the Evidence Act. AH the authorities cited in this regard relate to the witnesses who were alive but were stated to be not available for one reason or the other, and in she circumstances of each case their Lordships came to the conclusion that proper legal steps for their produc­ tion, and the evidence of their genuinely being not available, was not brought on record. In none of the authorities cited, the secondary evidence was led of a witness who had died. I had put a question to the learned counsel for the appellant if he has the instructions that the witness is still alive he was not able to say that the witness was alive. As such no benefiti can be given to the appellant for non-production of this witness, as bej/4 had died and the provisions of Section 33 of the Evidence Act have beenj complied with. 12. I have considered the evidence of motive. Learned counsel for the appellant has pointed out that no question has been put to PW6 Muhammad Luqman regarding the motive arising out of the allegation of divorce of Afst. Manzuran having been sent, and of Ghuiam Nabi, her father's having come to '.he village and having complained With egard to the other motive learned counsel for the appellant has pointed out that a suggestion was put on behnlf of the appellant to PW6 that the appellant has been involved in this case in order to do away with him as he was going to marry Mst. Shiman. In this view of the matter, the observations made by the learned trial Court with regard to this piece

of evidence do not seem to be substantially correct. The evidence in this regard, as such, cannot be lightly discarded. 13. The objections raised regarding the evidence of production of bloodstained Sota by the appellant before the Police seem to have weight. The appellant, according to the prosecution had appeared on the third day of the occurrence. It does not seem probable that he would have appeared and produced the Sota and that too without removing the blood from the same. The statement of PW9 in this regard does not find corroboration from any other evidence. The other recovery witness has not been produced while the Sub-Inspector before whom the Sota was produced, had died. 14. There seems to be no good and cogent reason to discard the eye-witness account. One of the witnesses, although is son of the complain­ ant, but he is first cousin of the appellant also. No good ground has been made out to discard his evidence. After all, why should he falsely depose against his own uncle's son. The other witness is an independent witness. There is no allegation that he was inimical to the appellant or was friendly to the deceased or the complainant. The only allegation is that he was also a 'Raiyaf of Sardar Muhammad Latif, of whose 'Ralyat' the complainant is also stated to be. The complainant and his father were cultivating the land of one Ghularo Muhammad Amin PW was earning his livelihood by running a Bicycle Repairing shop. If bothof them had agreed to help Sardar Muhammad Latif for collecting the seedling of paddy or for sowing the same, this would not mean that some relationsip had develop­ ed between the two. May be, both of them were engaged for the job, and may be. both of them had been requested. Mere fact of their getting together for doing some job of a third person does not mean that I relationship had developed between the two. The reasons deposed by these witnesses for being nearabout the place of occurrence finds corrobora­ tion from the statement of Sardar Muhammad Latif. The discrepancies pointed out in their evidence and some slight improvements made by them, do not mitigate the evidenciary value of their statements in any manner, and as such I do not feel inclined to agree with the learned counsel for the appellant that the eye-witness account in this case cannot be relied upon. In the circumstances, no doubt is left in my mind that the appellant had attacked Shah Muhammad (deceased) and caused him injuries on the day of occurrence. 15. There seems to be weight in the contention of the learned counsel for the appellant that the appellant cannot be burdened with the intention of having intentionally committed the murder of Shah Muhammad. The motive alleged against the appellant does not make out ! a case of development of inimical relations between the appellant and the deceased, for the reason that the forged divorce of Mst, Manzuran regarding which complaints were made that the same had been posted by the deceased, was regarding the wife of Ahmad, primarily he was affected. 1 The appellant at the best would have felt some annoyance being a member of the family. In the case of other motive, it is on record that Mst. Shiman was in the custody of Mst. Hanifan. her mother, and was residing in a

~ different village and the son of the deceased who was father of Mst. Shiman had filed a civil suit for eustody. Obviously, the deceased was not in a position to straightaway marry Mst. Shiman with the appellant, even if he wanted so. The admission of the fact of Jhe appellant being a supporter of Mst. Hanifan by the complainant, of course, shows his interest, and for that reason he might have felt that but for the suit filed by the son of the deceased, he may be able to get the hand of the girl. This again, at the best would have caused some disappointment, as such it is hard to believe that for these reasons the appellant would have decided to murder Shah Muhammad who was his real uncle, 16. The is not the prosecution case that the parties were inimical for any other reason or that any quarrel or incident had taken place between the families or between the appellant and the deceased before the present occurrence. 17. This intention can also be gathered from the weapon used and the acts done. The weapon of offence in this case was admittedly a Sot a, which had been removed from a Phaurar. Phanra attached to the Sola would have been a very deadly weapon. It was an ordinary 'Kikar' Sot a with which the appellant chose to cause injuries. Except injury on the arm, none of the other injuries had caused any fracture. Although three injuries were found to have been caused on the head, but one of them was an abrasion while the other two were only skin deep. According to the doctor there was no fracture beneath injury No. 1 which was the cause of death coupled with injury No. 6. In the circumstances it is difficult to hold that the appellant had intention or knowledge to kill his own uncle. The facts of cases reported in 1969 S. C. M. R. page 644 and 1969 P. Cr. L. J. page 1473 are, to a great extent, similar. In both the cases cited above, convictions of the appellants were altered from Section 302 PPC to Section 325 PPC. For the reasons enumerated above, the conviction of the appellant! uuder Section 302 PPC is set aside. He is convicted under Section 325 PPCL and sentenced to undergo 7 years R. I. He is also sentenced to pay a finej of Rs. 5, OOO/—. in default whereof to suffer one year R. I. Whole of the| fine, on recovery, shall be paid as compensation to the heirs of the deceas­ ed. Learned Collector' Okara shall be directed to take steps to recover the fine. The appellant 382-B Cr. P. C. shall be given the benefit of the provisions of Section Since the conviction of the appellant under Section 302 PPC has been set aside and he has been convicted and sentenced under Section 325 PPC, there is no question of enhancement of his sentence. Criminal Revision No. 1030 of 1980 stands dismissed. (Aq. By.) Order accordingly.

PLJ 1983 CR356 PLJ 1983 CR356 Present : muhammad aslam mian, J MUHAMMAD LATIF and 2 Others—Appellants versus THE STATE—Respondent Criminal Appeal No. 388 of 1982, decided on 19-2-1983. (i) Criminal Trial— -—Evidence—Appreciation of—Eye-witness—Testimony of—Presence of eye-witness at place of occurrence not striking as unnatural and such witness even otherwise not shown to have some motive to falsely implicate appellants—Ocular account as to injuries also corroborated by medical evidence— Held :- Reliance by Trial Court on evidence of such witness qua appellants not displaced. [Pp. 562&563]A C&G. (Si) Criminal Trial—

Witness—Related to deceased—Credibility of— Held: Substitu­ tion of real murderer being thing of rare occurrence, witnesses related to deceased not to normally allow such murderer to escape by implicating innocent person. [P. 562] B P L J 1978 S C 386 & 1968 P. Cr. L J rel. (Hi) Pakistan Penal Code (XLV of I860)— —S. 34—Acts done in furtherance of common intention—Liability for— Held : Presence of accused at scene of occurrence and their participation equally in attacking deceased with their respective weapons once proved, resultant injuries to be attributed to all of such accused. [P. 563]D (it) Criminal Trial.— -

Evidence—Appreciation of—Trial Court while convicting appe­ llant wrongly disbelieving ocular account on important aspect qua acquitted accused— Held : Witnesses being truthful, no further corroboration to be required in case. [P. 563] £&F (v) Pakistan Penal Code (XLV of I860)— ——S. 326—Grievous hurt—Offence of—Deeeased appearing to have died out of diseased lung and not due to injuries inflicted on him—Weapons used in causing injuries described as blunt weapons without any injury attributable with piercing part of tringle — Held: Resultant injuries not to be contemplated within scope of S. 326, P P C. [P. 564]H Mr. Naveed Shehryar. Advocate for Appellant. Mr. Sardar A. Knalld, Advocate for Respondent. Dates of hearing: 14/16/17/21-11-1982. judgment Muhammad Latif s/o Rehmat Khan (18), Allah Ditta s/o Ahmad Din (65), Nazir Ahmad s/o Mithoo Khan (23). Muhammad Hussain s/o Rahim AH (25) and Muhammad Sadiq s/o Ramzan (70), all residents of village Langaryal, Teb. Kharian, district Gujrat, were tried by the learned Addl. Sessions Judge Gujrat under section 302/ ^ 548/149 P PC. for forming an unlawful assembly and in the prosecution of the common object thereof, co:r. mining the murder of Muhammad Rafi s/o Rahmat Khan of the same village. The learned trial Judge vide his judgment dated 12-7-1981 while acquitting Nazir Ahmad and Muhammad Sadiq, convicted and sentenced Muhammad Latif. Allah Ditta and Muhammad Hussain under section 326 P P C. to ten year's R.I., with a fine of Rs. 2000/- each or in default thereof to undergo further one year's R. I. each. 2. The convicts have filed the present appeal. 3. The occurrence took place on 5-5-I9£0 ai degar wela in village Langaryal, 12 miles away from police station Lalair.usa, Munawar Hussain complainant (P. W. 9), a maternal nephew of the deceased reported 'he matter at police post Kikaryali en the same evcnirg a' 6.45p.m. ^ which was reduced in!o writing vide Ex P. L. by Shefqai Hufsain Shah Head Constable and a cast was registered vide F. I R. Ex. P B formally drawn by Ameer Akbar at police station Lalamufa under section 307/148/147 P P C. which was later on altered 10 one under section 302 P P C on the death of the deceased. 4. The facts of the case briefly stated are that Munawar Hussain complainant was posted as a teacher in village Langaryal. On the fateful dav he alongwith Muhammad Rafi deceased. Rahmai Khan his maternal grand father (P. W, 11) was present at his khalwara situated towards the north east of the village. The khalwa.a of Muhammad Latif appellant was also there at some distance. The two goats belonging to him entered in the khalwara of the complainant and started consuming the wheat. The deceased turned out the goats from the khalwara and reminded Muhammad Latif to take care of his goats upon which . Muhammad Latif appellant abused the deceased. The deceased in return also abused. Then Muhammad Latif went towards his khalwara. After awhile the three appellants accompanied by the acquitted conccused, all armed with trtngles forming themselves into an unlawful assembly, raising Idtkaras came over to the khalwara of the complainant and attacked Muhammad Rafi deceased. Muhammad Latif appellant was the first who inflicted a triangle blow to Muhammad Rafi on the head. The second blow was given by Allah Oitta appellant hitting the deceased on the right side of his head. Muhammad Rafi then fell on the ground. While the deceased was lying prone. Muhammad Hussain appellant gave a trtngle blow on the left side of his head, Nazir Ahmad acquitted co-accused caused an injury on the back of the deceased. Muhammad Sadiq acquitted co-accused remained there instigating the other accused to kill Muhammad Rafi deceased. Muhammad Rafi became un-conscious. An alarm raised by the complainant attracted Muhammad Ashraf (P. W. 10) i to the spot who also witnessed the occurrence. The P. Ws. got the deceased freed from the clutches of the accused by entreating them. The motive for the attack is stated that 3/4 days prior to the occurrence the cattle of Muhammad Latif appellant also damaged the wheat crop of Muhammad Rafi deceased which culminated in the exchange of abuses between the parties. 1. On 5-5-80 the complainant alongwith the deceased who was in an injured condition was on his way to police post Kakaryalt for making a report as to the incident when Shafqat Hussain Head Constable met him in Langaryal Chowk where his statement Ex. P. L. was recorded. ^ The Head Constable then sent the complaint to police station Lalamusa for a formal registration of the case He prepared the injury statement Ex. P. N. of Muhammad Rafi deceased and thereafter sent the deceased in the accompany of two constables to A. B. S. hospital Gujrat and he himself went to the spot. There he recorded the statements of the P. Ws. A supplementary statement of the complainant was also record­ ed. On the next day he visited the hospital. He made an application Ex. P. O. requesting the doctor for recording the statement of the deceased but the doctor vide his report Ex. P. K/l endorsed that the deceased was not in a fit condition to make a statement. Similarly on his application as to the result of injuries kept under observation the doctor reported-that injuries No. I and 2 were grievous and dangerous to life. Later on the deceased was shifted to the General Hospital Lahore and on 8-5-80 Shafqat Hussain Shah Head Constable went there for ^ recording his statement but the doctor reported that the deceased was not capable of giving any statement. Again on 24-5-1980 he visited the hospital for the aforesaid purpose but the doctor's reply was in the negative. On 27-5-1980 the Head Constable arrested Muhammad Sadiq acquitted co-accused who while in police custody led to the recovery of triangle P. 4. It was taken in to possession vide memo Ex. P. G. He got prepared site plan Ex. P. A. and P A/1 by the Patwarl and in­ serted his notice with red ink. Ameer Muhammad Shah S I. (P. W. 13) partly investigated this case. On 6-6-80 he received an information as to the death of Muhammad Ra6 in the General Hospital. On 9-6-80 he went to Lahore and got the copy of the postmortem report from the Incharge of Police Station actory Area Lahore. Muhammad Akbar A. S. I (P. W. 14) also investigated this case. On 10-5-80 he arrested appellants Muhammad Latif, Allah Ditta and co-accused Nazir Ahmad. While in police custody Muhammad Latif appellant got recovered triangle P. 5 from kothri of the house. It was taken into possession vide memo Ex. P. H. Similarly Allah Ditta appe- llant and Nazir Ahmad co-accused led to the recovery of tringle P. 6 and P. 7 which were taken into possession vide memo Ex. P. 1 and P. J., respectively. On 22-5-80 he arrested Munammad Hussain appellant, who later on got recovered tringle P. 3 which was taken into possession vide memo Ex. P. F. 6. Doctor Rashid Javid Ch. (P. W. 8) while posted as a Medical Officer in Aziz Bhatti Shaheed Hospital Gujrat, medically examined ^ Mihammad Rafi deceased who was in an injured condition on 5-5-80 and found the following injuries on his person :- 1. A tender swelling 2/£"x2£" on right side of head in temporal region. 2. A lender swelling 3"x3" on top of head. A tender swelling 3x2 on left side of head in the temporal region. 4. A tender swelling with bruise on back of chest. The deceased was unconsious. The doctor declared that the aforesaid injuries were caused with a blunt weapon. He, however, kept the injuries under observation out of which injuries No. 1 and 2 were returned as grievous and dangerous to life. The deceased died on 4-6-80 at 12-25 p. m. in the General Hospital Lahore. However, his postmortem examination was conducted by Dr. Sabir AH (PW. 12). The injuries earlier found on the person of the deceased while he was in an injured condition were not present at the time of post­ mortem examination. The doctor found that under surface of the scalp over the frontal parietal region and both the temporal regions were found ecchymosed. The fronto parietal bone was found nibbled area 13x7 c. m. by the surgeon, the superior saggital sinus was found repaired and one spongestone was found lying over it. The wound of the skull was neither septic not there was any bleeding in the cranium. Two linear fractures were arising from the nibbled area going on to the frontal bone. Anteri­ orly another linear fracture was arising from the right end of the nibbled area and it was going towards the right temporal bone. There was fissured fracture arising from the left end of the nibbled area and was going towards the left temporal bone. There was a seperate fissured fracture of the right temporal bone. In the opinion of the doctor, the injuries were ante mortem inflicted by some blunt weapon and the injury to the brain was sufficient to cause death in the ordinary course of nature. As to the cause of death, the doctor further opined that the cause of death was toxaemia due to septic process in the right lung. The duration between injuries and death was about one month and between death and postmortem was a day only. 7. Dr. Riaz Ahmad Ch. (P. W. 16) on 7-5-80 medically examined Rahman Khan P.W. and found the following injuries on his person :— (1) A scalped wound i'xf on left side of scalp. (2) A scalped woundxl'xj on top of scalp. Complained of pain on left shoulder. All the injuries were caused •with a blunt weapon. Those were kept under observation. 8. In support of its case the prosecution at the trial relied upon the following pieces of evidence. (i) The evidence of motive given by Munawar Hussain (P.W. 9), Muhammad Ashraf (P.W. 10) and Rehmat Khan (P.W. 11). (li) The ocular evidence furnished by the aforesaid three P.Ws. out of whom Rahmat Khan P.W. was injured in the incident. (///) The inciminating recoveries ; and (ft) The medical evidence. 9. All the appellants in their statements under section 342 Cr.P.C. denied the allegations against them including the incriminating recoveries allegedly made at their instance. In an answer to a question that why the case was made against them, ail the appellants stated : — "The real facts are that the dispute occurred between the deceased and Bashir brother of Nazir accused in the Khalwara of said Bashir. ' who in connivance with the police managed to proceed abroad and in his absence in connivance wiih the police we have been falsely implicat­ ed in this case for being his relatives.... " All the appellants are related inter se. Appellant Muhammad Latif is paternal cousin of Nazir Ahmad co-accused who is maternal nephew of Allah Ditta appellant. Muhammad Hussain appellant is paternal cousin of Allah Ditta appellant. Muhammad Sadiq co-accused is brother-in-law of Muhammad Hussain appellant. The appellants did not lead any evidence in defence However, Muhammad Latif appellant produced a school leaving certificate Ex. D.D, in order to show that he was at that time a school going boy. 10. The learned trial Judge disbelieved the motive by observing :— ''Had the accused any intention or common object to commit murder they eould have easily attacked upon the deceased at some early hours when they were already in their khalwara alongwith tringles with which they were working. Had the goats of Latif not come to the khalwara of the deceased, then there was no question of any mis-happening between the parties. For these reasons, I can safely conclude that the accused had no motive at all for the commission of this murder." As to the ocular evidence be believed the testimony of Munawar Hussain (P.W. 9) and Muhammad Ashraf (P.W. 10) and came to the conclusion :— " ................... ....the allegation against him (Sadiq co-accused) is that he inflicted injury to Refamat Khan P.W. But as I have already discussed the injuries upon the person of Rehmat Khan P.W. do not prove to have been received at the time of occurrence, so in view of this legal position, I find that the prosecution case against Nazir Ahmad and Muhammad Sadiq accused is not proved beyond shadow of doubt. 14. Now the question arises that in these circumstances whether the statements of the eye-witnesses should be believed or not so far as the other accused are concerned, I will refer to 1973 S.C.M.R. 162. in which it has been iaid down that the maxim false in one thing false in all is not applicable in this country in context of the conditions prevailing here. Courts have to sift grain from the chaff and the mere fact that evidence of eye-witnesses being not relied upon on one of the accused would not re-act on the credibility of evidence against the other accused. So I find that the ocular evidence is reliable so far as Latif, Allah Ditta and Muhammad Hussain accused are concerned." 11. The learned trial Judge discussing the evidence of recovery in para No. 15 and 16 of his judgment came to the conclusion that the same were not worth relying and he rejected this piece of evidence. Finally the learned Add!. Sessions Judge relying upon 1976 P.Cr.L,J. 869, found the appellants guilty of an offence under section 326 PPC. 12. The learned counsel for the appellants has assailed the validity of the impugned judgment by maintaining that after having disbelieved the witnesses on important aspects of the case qua the acquitted accused n was not safe to rely upon the evidence of such witnesses in respect with the appellants. In these circumstances it is necessary to go for corrobo­ ratory evidence from an independent and unimpeachable source. In this case ihe witnesses went up to the extent of involving innocent persons without themselves having witnessed the occurrence. The reasons on which the learned Additional Sessions Judge has rejected a part of the evidence of the witnesses can be applied to the evidence which has been believed by him, hence the same is also liable to be rejected. The appellants are entitled to acquittal because of the complete absence of the corroboratory evidence since recoveries have not been relied upon by the learned Additional Sessions Judge, The medical evidence belies the ocular account, The witnesses state in their evidence that the fingers of the Iringles were used in causing the injuries while it is in the medical evidence that as to the injuries blunt weapon had been used, so according to the learned counsel, the conviction, if at all possible cannot be maintained under section 326 P.P.C, as the injuries were proved to have been caused with a blunt weapon then the case falls under section 325 P.P.C. !3. As to the requirement of independent corroboration in a case where an ocular account vts-a-vis certain accused is disbelieved the learned counsel has relied upon Ahmad v. The Slate (1982 S.C.M.R. 1049), Muhammad Sher v. The S!ate [ 1981 N.L.R. (Criminal) 548]. Imam Bakhsh v. The State {P.L.J. 1979 Cr.C. (Kar.) 293], Muhammad Slddiqw v. The State (P.L.J. 1981 Cr.C. (Kar,) m,}Ghulam Rasool . The State (1919 P.Cr.L.J. 493) and Muhammad and another v. The State (P.L.D. 1954 F.C. 84). 13. The learned counsel for the State has in reply submitted that the medical evidence corroborates the ocular account as to the injuries. The recoveries have been wrongly disbelieved by the learned Additional Sessions Judge. So far as the present state of the case is concerned the appellants'case is distinguishable from that of the acquitted accused. As to the appreciation of evidence in such a situation the learned counsel has submitted that the mere fact of evidence of eye-witnesses being noi relied upon against an accused, will not re-act on the credibility of the evidence against the other accused and for this the learned counsel has relied upon Samano v. The State (1973 S.C.M.R. 162), In this decision the learned Supreme Court has observed as to the maxim "falsut in uno f&lsus in omnibus', that this maxim is not being followed by the coum of this country within the context of conditions prevailing here. The courts have their duty to sift the grains from the chaff. As co the conflict of evidence regarding the use of the weapon the learned counsel has submitted that no doubt a tringle is a blunt weapon meaning ihereby that it. Is coade of wood but its one part which pertains to fingers happens to be the sharp part of it with which piercing cuts and injuries can be caused and with • this part a tringle can be regarded as an instrument within the contempla­ tion and scope of section 326 PPC. As to the sentence the learned counsel for the State has addressed that the learned Additional Sessions Judge has already taken a lenient view and has not convicted the appellants under section 302 PPC. According to him the appeal merits dismissal. 14. The main address of the learned counsel for the appellant is towards, 'appreciation of the evidence', therefore, for a just disposal of tbe present appeal it is necessary to examine the way the learned Additional Sessions Judge has approached the case. He has rejected the evidence of P.W. Rahmat Khan, one of the eye-witnesses of the occurrence. He has given as much as eight reasons towards the rejection of his evidence. The predominant reason among which is that after five minutes of the occurrence the witness had gone to village Buzargwal and remained stuck there uptil the third day of the occurrence despite the fact that immediately, after the occurrence his son in an unconscious state was admitted in the hospital. As to the. appreciation of the evidence of this witness I agree with the conclusion of the trial Court. 15. It is an admitted fact that the complainant is son of tbe sister of the deceased but as to the relationship of the deceased with Muhammad Ashraf P. W. 10 the learned Addl. Sessions Judge has observed that it "remains unproved". As to a related witness the learned trial Court has rightly observed that a related witness is not always an un-worthy witness. However, the evidence of Munawar Hussain (P.W. 9) is the same on the material points as has been alleged by him in the F.I.R. His presence at the spot does not strike as unnatural since according to the site-plan bis khalwara is at a distance of five karams from the place of occurrence, nor it has been shown as is observed by the learned Addl. Sessions Judge that the witness had some motive to falsely implicate the present appellants. The learned Addl. Sessions Judge has rightly applied the dictum of P.L.J, 1978 SC 386 that the witnesses related to the deceased will not normally allow the real murderer to escape by implicating an innocent person and 1968 P.Cr.L.J. 407, that substitution of a real murderer is a thing of rare occurrence. The narration as to facts of occurrence by P.W. 10 Muhammad Ashraf is more or less in the same weight as that of the complainant. He also does not appear as an unnatural witness because bis Khalwara is also situated, as shown in the site-plan, at a distance of 12 karams. In respect C with this witness there is nothing to suggest on the record thai he had any motive to falsely implicate 4he appellants, therefore, reliance of the learned Add). Sessions Judge on the evidence of this witness qua the appellants is not misplaced. 16. To deal with the contention of the learned counsel for the appellants that the witnesses were disbelieved as to the co-accused and so the evidence was not worth relying against the appellants. The matter requires examination from the point of view that whether the itnesses have been rightly disbelieved in respect with the co-accused namely Nazir Ahmad and Muhammad Sadiq. The learned Add). Sessions Judge has observed that the case has not been fully proved rather it is doubtful gainst Nazir Ahmad and Muhammad Sadiq co-accused. The reason which the learned trial Judge has given in that because during'the crossexamination the complainant stated that after receiving first two injuries on the head when Muhammad Rafi deceased fell on the ground his face was upward, so the learned Judge is of the view that when the face of the deceased was upward-how blow with a trlngle could be given on his back by Nazir Ahmad co-accused and on this the learned Judge has concluded that the prosecution case against Nazir Ahmad was much doubtful. The reason which has been accorded by the learned trial Judge as to the doubt­ fulness ot the case against Nazir Ahmad co-accused is not a strong one. It is never incumbent in proving a particular case on the prosecution in such matters to lead evidence with mathematical accurecy. Once it is proved that the accused persons are present on the scene of occurrence and they participate equally in attacking a deceased with their respective weapons then resultant injuries are attributable to all of them by virtue of there being a joint attack. It had not been asked from the witness that at the time Nazir Ahmad co-accused gave his blow what was the position of the deceased. It had been simply stated by this witness that after receiving the first two blows the deceased fell down with his face upward but that does not mean that he remained so throughout. As a matter of course when a person receives certain blows he passes through a state of convulsions by which (he posssbility of the turning of the body either way cannot be ruled out. Had the answer been to a question that by the time Nazir Ahmad co-accused hit him what was the position of the deceased ihen the statement of the complainant could be regarded of some value. Moreover when a participation is proved an inaccuracy about such a detail, does not contribute much so as to detract from the value thereof, therefore, the learned Add! Sessions Judge in his approach is wrong that Nazir Ahmad's case is doubtful when he has been equally implicated alongwith the appellants as a participant, Since there is no appeal ot revision against th.e acquittal of Nazir Ahmad and the matter is not before me, therefore, the matter ends as it is but with ihe result that the appre­ ciation of evidence in this regard by the learned Addl. Sessions Judge is not correct. 17. As to Muhammad Sadiq co-accused the reasoning of the learned Addl. Sersions Judge is also shaky. While assessing the liability as to lalkaras, to observe that proverbial lalkaras are frequently alleged to implicate innocent persons cannot be treated as a rule for al! the cases. The assessment of such a liability depends upon the facts of each case. The learned Addl. Sessions Judge irrespective of the referred rule ought to have assessed upon the liability of Muhammad Sadiq co-accused in keeping with the circumstances availing in this case. In view of what has been said immediately above here the evinence of Munawar Hussasn (P.W. 9) and Muhammad Ashraf (P. W. 10) cannot be regarded as disbelievable in respect with the co-accused except that whether the lalkara attributed in the circumstances as to Muhammad Sadiq co-accused per se could give rise to any liability in law since his case is also not before in e, a further probe is not required, therefore, it is not available to the learned counsel for the appellants to maintain that an independent corroboratory evidence is required in this case to corroborate the witnesses in respect with the appellants since in my view it is not a case of divided veracity. The learned Addl. Sessions Judge has wrongly found that the prosecution has not been able 10 prove its case against the co-accused; therefore, the deci­ sions cited by the learned counsel for the appellants are of no help to him because the case does not need any further corroboraiion as the witnesses appear to be truthful so far as goes the implication. 18. The prosecution has succeeded in proving its case through the| ocular account of two P. Ws. even if it is regarded that the recoveries andj motive have been rightly rejected. The learned counsel for the State isf right in his submission that ocular account as to the injuries stands cor-I roborated by the medical evidence. The defence of the appellants appears' to be fantastic so it has been rightly rejected by the learned trial Court. 19. The learned trial Judge has convicted the appellants under •section 326 PPC on the ground that the cause of death as expressed in the post-mortem report was toxaemia due ro septic process in the right lung and no injury had been caused to the right lung of the deceased. It is, no doubt, also expressed in the post-mortem report that the injury caused to the brain was sufficient 10 cause death in the ordinary course of nature but in the opinion of the learned trial Judge it had not been proved that the deceased died of bead injury because of the cause of death distinctly stated and the injuries having been heaied up before his expiry after a month. 20. The deceased appears to have died out of the diseased lung and not due to the injuries inflicted upon him. So the appellants incur only the liability of causing grievous hurt in a joint venture. But even then an exception can be taken to the conviction of the appellants under sec­ tion 326 PPC as the weapons used in causing the injuries have been described as blunt weapons. No injury is attributable with the piercing part of the tringle i.e. wooden fingers. So the resultant injuries cannot be contemplated within the scope of section 326 PPC and in ibis behalf the submission of the learned counsel for the appellants is acceptable that if the conviction is maintainable as to grievous hurt then the offence against the appellants falls as covered by section 325 PPC because of the weapons used and the nature of the injuries 21. For the foregoing reasons this appeal is p rtly accepted ; the conviction and sentences of the appellants under section 326/34 PPC are set aside. However they are convicted under section 325/34 PPC for having caused grievous injuries with blunt weapons. As to the sentence, the appellants have already undergone a period of two years and eight months, therefore, it will meet the ends of justice if the same is treated as the sentence under section 325/34 PPC, it is ordered accordingly. The appellants shall be released forthwith if not required to be detained in connection with any other case. (Aq. By.) Order accordingly.

PLJ 1983 CR364 PLJ 1983 CR364 Present : mazharul haq, J MUHAMMAD SALEEM—Appellant versus THE STATE—Respondent Criminal Appeal No. 74 of 1982, heard on 8-6-1983. (i) Pakistan Penal Code (XLV of I860)—

Ss. 308& 307—Culpable homicide—Attempt to commit—Offence of •—Dancing gir! married to appellant reverting back to her profession with her suckling baby—Appellant trying his best to bring her back and on her final refusal shooting at \tr~Held : Reversion back to her profession of dancing being matter of great disgrace, annoyances and provocation, conviction of appellant to be converted from S. 307 to one under S. 308 PPC. [Pp. 366 & 367] A (ii) Pakistan Penal Code (XLV of I860)—

Ss, 307 & 34—Attempt to murder—Offence of—Conviction for—­ Appellant not attributed any overt act except his presence o» 1 fateful night—Even identification of such accused not satisfactorily proved—Appellant also not shown to have any knowledge of other accused having carried fire arm with him— Held: Prosecution case being doubtful, appellant to be given benefit of doubt. [P, 367] B Mr. Muhammad Adam Quresfti Advocate for Appellant. Mehr Skaukat Ali, Advcate for Respondent. Date of hearing : 8-6-1983. judgment Muhammad Salim (23) and Asif Mahmood (22) were convicted under section 307/34 PPC by Magistrate Section 30, Lahore, on 22-12-1981. Both were sentenced to seven years R.I. and to a fine of Rs. 5000/- each, in default to undergo one year R.I, Out of the fine, if realised, a sum of Rs. 5.000/- was ordered to be paid to Mst. Sbabnam as compensation. The appeals of the convicts are before me. 2. Mst, Shabnam, a dancing girl was carrying on with Muhammad Salim appellant, who used to visit her. Eventually, they got married but the marriage did not last long. Aftef about a year, they separated. Mst. Shabnam reverted to her profession and came over to her mother, with a newly born daughter. The appellant tried to bring her back, but she refused to go with him. On 2i-4-1980, after mid-night, Ms?. Shabnam, her mother and their companions Zahoor Hussain Munir Hussain and Waqar Hussain were on their way to the house of Mst. Shabnam. The two accused appeared oa a scooter near the shop of a petition writer. Muhammad Salim asked Tit. Shabnam to accompany him. Upon her refusal, he fired three shots at her. The two shots hit her in the abdomen and the right Blank. Thereafter, both the accused made good their escape on the scooter and Mst, Shabnam was carried to the Mayo Hospital, Lahore, where she was examined by PW6 Dr. Abdus Sat tar Ch. who found the following injuries on her person :— "1. Circular injury like bullet injury with irregular margin which is blackened on right lumber regioa of abdomen 13 cm right to the umblicus. 2. Circular injury like bullet injury with irregular blackened margin upper lateral aspect of right thigh." 2. Upon information, PW8 Sfiahbaz Khan, A.S.I. reached the hospital and recorded the statement of PW3 Mst, Nasim other of he victim at 1.30 a.m. on the basis of which, formal FIR Ex : PA/1 was recorded at Police Station Tibbi, the same night at 2.00 a.m. 3. After ?he registration of the case, both accused were arrested on 23-4-1980. On their search, revolver Ex; Pi with two live artridges P2/1-2 were recovered from the person of Muhammad Saiim. These were taken into possession vide memo Ex: PC attested by Haji Muhammad and PW5 Muhammad Tufail, A revolver was also recovered from the persona! search of Asif Mahmood alias Gogi, which was taken into possession vide memo Ex. PD attested by PW5 Muhammad Tufail and Haji Muhammad (given up as won over). After completing the investigation, the accused were sent up for trial. 4. During their examination under section 342 Cr.P.C., both theaccused denied guilt, They ascribed ihe case to enmity. Muhammad Salim denied his marriage with Mst. Sbabnam though he admitted that he was carrying on wi.h her and since she lived with him, her mother and other relations turned against him and that on the night of occurrence, some unknown assailants had assaulted her and in order to get rid of the accused, they substituted him for the real assailants, Asif Mahmood took up the plea that he had been falsely roped in because of his friendship with Muhammad Salim. Both the accused produced no defence. 5. Learned counsel for the appellants contended that it was a night occurrence and the identification of both appellants was doubtful I have considered this aspect of the case. During cross-examination of the witnesses, it was not suggested to them whether it was dark. It is common knowledge that streets of big towns are Sit with electric light. Had it been a dark night, there would have been some suggestion. In the absence of a suggestion, there is no evidence to indicate that it was a dark night. 6. It was next contended that the eye-witnesses were interestede. Undoubtedly, they are connected with the victim in one way or the other but p. Ws. Zahoor and Waqar had no axe to grind against the appellants though Mst, Shabnam and her mother had differences with one of them, There is no doubt that Muhammad Salim appellant had come over to the place of occurrence and tried to persuade Mst. Shabnam to accompany him. The sole question for determination would be whether he acted under grave and sudden provocation. It is the prosecution case itself hat Mst, Shabnam was the wife of the appellant. It is also admitted by Mst. Shabnara's mother that the appellant visited their house twice and tried to take away Mst. Shabnam but she refused to go with him. According to Mst, Shabnam, she had filed a suit for the dissolution of marriage, but there is no documentary proof to this effect. It appears that it was embarassing for the appellant to acknowledge his marriage with a dancing girl. There are however circumstances appeasing in the evidence of this case, which amply prove that he had married berr. On the other hand, the story put up by Mst. Nasim and her daughter about the dissolution of marriage suit appears to have been put up in order to aggravate the offbuce. Had there been a suit pending, it would not have been difficult for both to produce a certified copy of the plaint or of the proceedings. There is ample evidence that Salim appellant married Mst. Shabnam. On other hand, prosecution has not been able to prove whether any sun for dissolution of marriage was pending. There is no cogent reason forthcoming from the prosecution evidence as to why Mst. Shabnam bad abandoned her marital home. On the other hand.it is admiued by the prosecution witnesses that Salim appellant had been going to take her home from the bazar, where the dancing girls carried out their profe­ ssion. It appears that married life became too demanding for he?, and perhaps she coald not adjust to the changed circumstances, therefore, she reverted back to her profession, which would obviously be a matter of great disgrace, annoyance aad provocation to the husband of such a woman. It is not one of those cases, wh;re a wife has refused to live with her husband for good reasons. It is a case which has a different setting. Its facts are self-explanatory. The appellant tried his best to bring her horns on her final refusal, he shot at her. It may also be added how that he had a daughter from her, who was a suckling baby. Under these circumstances of this case, I am of the view that the offence woulc fall under section 308 PPC. I, therefore, alter the conviction of Salir appellant from 307 to the one under section 308 PPC and reduce his sentence to a period already undergone by him. The sentence of fine is also remitted. 7. In so far as Asif Mahmood appellant was concerned, according to the narration in the F.f.R., the informant did not know him, but learnt his name later on inquiry. Prosecution did not hold any identific­ ation parade for the identification of Asif. Moreover, I find that the recovery of pistol from him was also a doubtful matter because according to the investigating officer, its recovery memo was only signed by him, but he did not know as te who prepared it. It was a strange statement made by the police officer. Normally, the recovery memos are prepared by the investigating officers themselves. Moreover, I find that the weapon recovered from him was not produced at the trial. It is also noteworthy that in the F.I.R., it was not mentioned whether Asif Mahmood had also fired while leaving, though this improvement was made by Ms!. Shabnam at the trial. Except for the evidence of PW Waqar, and Shahman, the other witnesses have not stated whether they knew Asif Mahmood. PW Waqar is undoubtedly associated with the family of Mst. Shabnam. Three of his own sisters were dancing girls in the same bazar and were on the visiting terms with the family of Mst. Shabnam for the last twentyfive years. I am of the view that prosecution has not satisfactorily proved the identification of Asif because no identification parade was held in this case to clinch the matter. Nevertheless, assuming that he was with Salim that night, a question would arise whether be had the knowledge that his companion was carrying a fire arm. According to the prosecution case when Mst. Shabnara refused to accompany Salim, it was then that Salim pulled out a pistol and fired at her.. There is no overt act attributed to Asif in the F.I.R except his presence with Salim. Under these circumst­ ances, I am of the view that the prosecution case against him was doubtful. He is, therefore, given the benefit of doubt and acquitted of the charge. He is discharged of the bail bonds. Order accordingly.

PLJ 1983 CR367 PLJ 1983 CR367 Present; Z.C. vauani, J MUHAMMAD ASLAM—Petitioner versus THE STATE—Respondent Criminal Revision No, 164 of 1980, decided on 27-2-1983. Criminal Procedure Code (V of 1898)—

S. 243—Guilt—Plea of—Conviction—Basis for—Applicant giving his plea of guilt in writing— Held : Provisions of S. 243, Criminal Procedure Code being fully complied with, trial Court fully justified in convicting applicant on basis of such plea of guilt. [P. 368 & 369]A 1969 P. Cr. U 373 & 1971 P. Cr. LJ 658 & 1125 held not applicable. Mr, Rashfd A. Rizvi, Advocate for Appellant. Mr. Imam Bux, Advocate, Karachi for Respondent. Date of hearing : 22-2-1950. judgment The applicant above-named, being aggrieved by judgment dated 13-10-1980 of the learned VHItb. Addl. Sessions Judge, Karachi, in Cr. Appeal No. 251/80, by which his said appeal was dismissed and the judgment dated 31st August, 1980 passed by A.CM. Shariat Court, Karachi, convicting the appellant u/s 14 of the Islamic Law (Against Property) Ordinance, 1979 r/w Section 243 Cr. P,C. and sentenced to 6 months R.I. was upheld, has preferred the above appeal, on the following facts and grounds :— Briefly the facts of the case are, that on 22-8-80 at 3.0 p.m. the appli­ cant was apprehended by the Police at Regal Bus Stop and recovered from his possession stolen property consisting of one Tape recorder Phillips make valuing Rs, 1000, The applicant was arrested and a case was registered against him. After completion of the investigation the applicant was challaned in the court. The applicant was given copies of statements u/s 161 Cr. P.C. (Ex. I/A) and heat the same time moved an application and pleaded guilty. Acc­ ordingly he was charge sheeted vide (Ex. 2) and he pleaded "guilty volunt­ arily. In view of bis own plea be was convicted u/s 14 of the Islamic Law (Against Property) Ord. 1979 read with Section 243 Cr. P.C. and sentenced to undergo R.I. for six months only. The learned trial court taking into consideration the applicant's written p!ea of guilt convided the applicant abovenaieed as hereinbefore mentioned and consequently appellant had filed Appeal No. 251/80 before VIII A.D.J. Karachi which was dismissed and consequent;; applicant has filed above Petition on the grounds mentioned in the memo of petition. The learned advocate for the applicant in support of the above Petition submitted, that the applicant's plea of guilt is in violation of the provisions of Section 243 Cr. P.C. and as such conviction of the application such plea cannot be legally maintained. la support of this contention the learned advocate for the applicant relied upon cases reported in !969 Pak. Cr. L.I. P. 373, 1971 Pak- Cr. L.J. pp. 658 and 1125. The learned Advocate for the State on the other hand submitted, that ob account of the written plea .of guilt given by the applicant, there was a full compliance with the provisions of Section 243 Cr. P.C. and conse­ quently he fully supports the impugned judgments. i have carefully considered the above submissions made by the learned advocates before me and have gone through the R & P of the learned trial Court aad through the judgment of both learned lower courts and casescited by the learned Advocate for the applicant. I find no force in the contention of the learned Advocate for the applicant, as applicant gave his piea of guilt in writing and as such in my opinion provisions of Section 243 Cr. P.C. were fully complied with and the learned trial Court was fully justified in convicting the applicant on thei basis of such plea of guilt. I find that the learned trial court in its judgj merit has given the facts of the case and on the basis of the written plea off the applicant convicted him. In view of this, cases cited by the learnedj Advocate for the applicant are not applicable to facts of the present case. Therefore I dismiss the above petition. Applicant Is on bail and as such his bail bond is cancelled and the learned trial Court is directed to issue non-bailable warrant for the arrest of the applicant and on his arrest to remand him back to the judicial custody so serve out she remaining sen­ tences awarded to him under the impugned judgment diued 30th August, 1980. of the Magistrate Islamic law. I further direct thai benefits of powers of Sec. 382-B Cr. P.C. be given to the applicant in respect of his period of limitation as under trial prisoner, besides his substantive sentence. (TQM) Petition dismissed.

PLJ 1983 CR369 PLJ 1983 CR369 Present . vauani ANWAR—Appellant versus THE STATE—Respondem Criminal Appeal No. 191 of !981, heard on 30-1-1983. (i) Pakistan PenAI COdE (XLV of I860-

S. 307 read with Criminal ProceduTe Code (V of 1898)—S. 410— Attempt to murder—Offence of—Conviction for—Prosecution by statements of P. Ws. as well as recovery of ckurri from possession of appellant proving case against appellant beyond reasonable doubt— Held : Statements of witnesses being straightforward and convincing and recovery of churri having also been established by statement of mashir as well as investigation officer, findings of trial Court not to be disagreed with. [P. 31l]A (ii) Sind Children Act (XII of 1955)—

Ss. 71 & 72—Minor—Conviction of—Procedure for—Appellant admittedly 15/16 years of age on dale of incident—Trial Court trying him under ordinary laws and something appellant in utter disregard of provisions of Act 1955— Held: Sentences awarded lo appellant not to be maintained—Criminal Procedure Code (V of 189S)—S. 410. [P. 311] BAC Mr. Muhammad Hay at June jo, Advocate for Appellant. Mr. G. R. Warsi, Advocate, Karachi for Respondent, Date of hearing : 30-1-1983. judgment Appellant abovenamed, being aggrieved by judgment dated 1-10-19Si of the learned Additional Sessions Judge, Hyderabad, in Sessions Case No. 212/79, whereby appellant has been convicted u/s 30? P. p. C and sentenced so suffer R. !. for 7 years and to pay a fine of Rs. 2000/- or in default to suffer further R. 1. for 6 months, has preferred the above appeal, or the following facts and grounds :- 2. Briefly stated on 25-8-1979 one Abdul Majeed a complainant lodged a report in almost in the following words "That he has got a tea canteen at Shahb Cinema. That his son Mohammad Ilyas has got his garage adajacent to Baboo Hotel at Bakaramandi and that he is also a Rickshaw driver. It is alleged that today i.e. 25-8-1979, when the complainant was present in his said canteen, one Saleem Rickshaw driver, who is a friend of Muhammad Ilyas came and informed him that while Saleem, Salam and Rashid were sitting in the garrage of Mohammad Ilyas, Mohammad lyas went out fetch tea for them from Baboo hotel. It is alleged that appellant Anwar s/o Mian Jan teased and abused Mohammad Ilyas and gave him also fist and kick blows, whereupon it is alleged that Muhammad Ilyas raised cries and that on commotion they I.e. Saleem, Salam and Rashid all the three came out of the garrage and they saw the appellant took churry from the fold of his shalwar and siarted giving churri blows to Ilyas over his stomach, backside of neck, left shoulder and left and right hands etc. The appellant on the challenges given by Saieem and bis friends, he being provoked waiving churry in his hand ran away towards Achi Mori, It is alleged that meanwhile one Mohammad Rafiq, who happened to be Ustad of Mohammad Ilyas reached at the place of, wardat nd he then took Muhammod Ilyas to Civil Hospital in bis rickshaw. The complainant after receipt of this information about the above urentioned incident went to Civi! hospital and saw his son Mohammad Ilyas admitted in Surgical Ward No. ! and bed No. 4, who had injuries over stomach, back side of neck left shoulder and left and right hand caused with churry and was bleeding". Case was registered by one pir Bashir Ahmad A. S I. He thereafter gave letter to the complainant to be .taken to hospital for admission of his son Mohammad Ilyas formally. A.S.I, then himself went to the hospital, inspected the injuries of injured Mohammad Ilyas and prepared such mashirnama in presence of mashirs as Ex. 9/A A. S. I. also recorded the statement of the injured, with the permission of the doctor. A. S. I. then along with complainant went at the place of wardat. He inspected the scene of offence and prepared such mashtrnamas in presence of mashirs as Ex. 9 B, He also fecorded the statements of P. Ws Saleem, Salam and Mohammad Rafiq and Rashid etc Then A.S.I, came back at the police station and also secured blood stained clothes of injuries Mohammad Ilyas 'which were brought from the ospital and he prepared such mashirnama in presence of mashirs Mohammad Yousaf and Abdul Kayopm as Ex, 9 C. On 26-8-1979 appellant was arrested from Haji Umed Ali Road Phuleli Hyderabad and such mashirnama of arrest was prepared, in presence of mashirs as Ex. 9/D. Appellant then led A. S. I- to the gate of Bakra Msndi, from where he produced a churry. It was hidden under the ground. It was secured and was sealed in presence of mashirs and later was sent for chemical examina­ tion and report. After the chemical and medical reports were received and completion of necessary investigation, the case was handed over to S. H O, who subsequently challenged the appellant in the Court ,to stand his trial. 3. Charge was framed and was read over to appellant in Court, to which he pleaded not guilty. Appellant in his statement recorded /s 342 Cr. P. C. denied the allegations of the prosecution. He stated that prosecution witnesses have given evidence against me only because they are friends of the injured Muhammad liyas and therefore they are interest ed wit nesses" and that he is innocent. The appellant however, lead no evidence in defence. 4. Prosecution examined P. W. 1 Abdul Majeed (complainant) Ex. 2. P. W. 2 Muhammad flyas (injured) Ex. 5 P. W. 3 Abdul Salam Shaikh, (E. W.) Bx. 6 P W. 4 Abdul Rashid Telo (P. W.) Ex. 7, P, W 5 Saleem ~iE. W.) Ex. 8, P. W. 6 Muhammad Yousaf (mashir) Ex. 9; P, W 7 Dr, Akhtar Hussain Meraon, Medical Officer Civil Hospital Hyderabad. • P. W. 7PirBashir Ahmad I. O. Ex, 10. 5. The learned Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal. 6. The learned advocate for the appellant at the outset submitted, thai he was not attacking the impugned judgment as far as the merits of the case are concerned, but since according to the medical certificate on record) age of the appellant at the time of the commission of offence in question was only 15/16 years, the sentence awarded to he appellant S cannot legally be sustained, in view of the provisions of Sind Children Act 1955. The learned advocate further submitted, that in view of the provisions of section 17/72 of the Sind Children Act, the sentence of imprisonment cannot be awarded to the appellant beyond the age of 18 years. In support of these contentions, the learned advocate for the appellant relied upon cases reported In A I R 1948 S. p. 63 and 1970 Pk. Cr. L. J. p. 397. 7. The learned advocate appearing for the State rightly conceded to the above Sega! position and further submitted, that medical certificate regarding the age of the appellant, at the time of the commission of the offence. The leraned advocate for the State also invited my attention to case reported in I L R 1944 Kar. P. 272. g. I have carefully considered the above submissions made by the learned advocate before me and have gone through the R & P of the learned trial Court as well as through the impugned judgment and cases cited by the learned advocate before me. 9. Prosecution by the statements of P. Ws as well as recovery of c/iurri from the possession of appellant has satisfactorily proved its case against the appellant, beyond reasonable doubt, as rightly conceded by the learned advocate for the appellant, I also find that the statements of the P.Ws are straighforward and convincing and the recovery of the churri has been established by the statement of masfilr as we!! a? i. O. and as-­ such I see no reason to disagree with the finding of tbe learned trial court! .and the impugned judgment, as far as the merits of the case are concerned.! However, it is an admitted position, according to certified copy of the medical certificate dated 17th Sept. 1979, which has been produced by the appellant alotigwitb his memo of appeal, that on the day of the incident his age was about 15/16 years Only. The learned trial court has a failed to take into consideration this medical certificate, which was available before him and consequently appellant was tried under ordinary .laws and convicted thereunder, io utter disregard of 'he piovisions of Sind Children Act, 1955. 10. In view of the above factual position on record, sentences awar-L; ded to the appellant cannot be maintained as rightly urged by the learned; (advocate for the appellant and frankly |State before me. 2. ren Act, _ aside sentences awarded to him and conduct and commit him ;o the case of Mr. Mia Jaa who shall execute a personal bond to the sum of Rs. 20,000/- for the said good behaviour of the appellant, for the said period. On furnishing of such bond by Mr. Mia Jan before the learned trial court, the bail bonds executed by the appellant in the above appeal shall stands discharged. 13. The above appeal stands dismissed in the terms of the above judgment. (TQM) Order accordingly

PLJ 1983 CR372 PLJ 1983 CR372 Present : Z. C. valiani, J ASLAM—Appellant versus THE STATE—Respondent Critnianl Appeal No. 320 of 1978, decided on 6-3-1983. Pakistan Penal Code (XLV of I860)—

S 302—Muirder—Offence of—Conviction for — Evidence Appraisal of—Enmity admittedly existing between complainant and accused sides—Two of eye-witnesses not supporting prosecution case and declared hostile while presence of other eye-witness at time of actual incident found doubtful — Recovery witnesses related inter se and even two of them not supporting prosecution case at all — HelJ: Ca&e against appellant not established beyond reasonable doubt. [P. 314]A Mr. Osman Ghant Rashid, Advocate for Appellant. Ch. Na7.1r Ahmed, Advocate for Respondent. Date of hearing : 3-3-1983. judgment Appellant abovenamed being aggrieved by judgment dated 27tfc November, 1978, of the learned Sessions Judge. Tharparkar, at Mirpurkhas. in Sessions Case No. 116/76 whereby appellant has been convicted u/s. 302 PPC and sentenced to Imprisonment for Life, has preferred the above appeal on the following facts and grounds :— The parties are Punjabi settlers and closely related inter se. Deceased Ismail was real brother of Ibrahim, who was father of appellant Aslara aad Akram. Complainant Mubarak ASi is son of Ismail, Ibrahim, Ismail and their third brother Hanif had lands and houses adjacent to each other. On 26-101976 Jsmarl and Hartif fought with each other on turn of water, at about 2,30 p. m. Ibrahim and Liaquat separated thera. Com plainant Mubarak AH on coming to know of this asked from co-accused Akram, who was sitting on the Kuiiar Machine, as to why that fight had taken place. On this Akram started abusing Mubarak Ali and assaulted r-faim with a Danda. Mubarak Aii saved the attack on&Dibbaof rail., which he was carrying and gave a blow wish that dibba on the head of Akram. On this Akram called Aslam to his help. Asiam came there from his house, carrying a hatchet in bis hand Ismail tried to separate Mubarak and Akram, on which Aslam gave two hatchet blows on the head of Ismail. Akram also gave a lathi blow on the head of Ismail, Ibrahim, Liaqat and Mst. Bashiran also came there and witnessed the incident. The appellant and co-accused went away to their house. Ismail became unconcscious. He was carried in a jeep to the police station, where the complainant lodged the FIR. He was referred to the hospital, but he expired before he could reach there. ASI Das tar Ali Shah after taking down the FIR held inquest on the deadbody of Ismail and sent the same for postmortem examination. ^ He also made enquiries from Mst. Basbiran. Abdul Majeed and Nazir. who had come to the Police Station, alongwith the complainant. He then went to the scene of offence and inspected the same. He scratched and secured the blood from the ground. He then secured the blood stained clothes.of the deceased produce by P. W Arbab Ali. On spy informntion, he surrounded the sugarcane cultivation of Ibrahim and arrested co-accused Akram and appellant Asiam, who were concealing inside that cultivation. The shirt which Aslam was wearing at that time had blood stains on it The ASI secured and sealed the same. On interrog'.ioi) Aslam volunteered to produce the crime hatchet and led the ASI in presence of mashirs to aheap of cotton sticks and therefrom took out and produced a blood stained hatchet. The AS! secured the same under a mashirnama. Coaccused Akram then made discovery of &latht. He then made enquiries from Liaquat and Ibrhim. The blood stained articles were sent to the Chemical Analyser, whose report is in the affirmative. A charge was framed against the appellant under section 302 read with Section 34 PPC to which they had pleaded not guilty and have claimed to be tried. The defence of the appellant was complete denial of the prosecution allegations. He had denied to have caused injuries 10 the deceased. He had also denied the recovery of blood stained shirt, .hatcbet from him. He had also disputed the truth of the Chemical Ana­ lyser's report. He had alleged that the PWs are interested inter se and are on hostile terms with them and have, sherefore, falsely .deposed against them. The appellant and co-accused had not examined any defence witness. The learned advocate for the appellant in support of the appeal submitted as unoer :— above (a) That there is discrepancy in Medical and ocular evidence on record and as such the presence.of the prosecution witnesses, who have supported the prosecution is doubtful. (b) That two independent PWs namely PW 6 Ibrahim and PW 7 Liaquat did not support the prosecution case and were declared hostile. ft;) That the injury on the person of acquitted person Akram was not taken into conisderation by the learned trial court, in order to determine which party was the aggressor. (d) That the recovery mashirs Abdul Razzak and Ismail help to Complaimant's side and in the face of admitted enmity between the parties over the distribution of water, such recoveries could not be relied upon merely on the basis of I. O. () That PW4 Mubarak Ali. son of the deceased in his statement before the learned trial Court categorically stated, that even PW5 Mst. Bushra, his mother reached after the incident, when the accused had left or leaving the wardat, so also P, Ws 6 & 7 were not present at the time of time of the incident. {/) That statement of PW Mubarak Ali requires independent corroboration on account of admitted enmity between the parties, who are closely related but such independent corroboration is not at all available in the present case. \g} That it was admittecily a sudden quarrel between the parties and as such conviction of ths appellant at any rate under the porvisions of section 302 PPC is not at all justified. (ft) That this is a case of unwitnessed crime and consequently the ellant has been falsely implicated due to admitted enmity. The learned advocate appearing for the State on the other band submi­ tted, that he was fully supporting the impugned judgment on the ground, that the name of the appellant i« mrntioned in the FIR and the recoveries from the appellant have been established by the statement of I. O., It seems that prosecution witnesses have patched up their differences with the appellant side and consequently some of them turned hostile and even PW1 Mubarak AH, the son of the deceased has given an obliging statement in favour of the appellant, in view of this the statements of the prosecu­ tion witnesses, given u/t. 164 Cr. P. C. be taken into consideration, as the appellant was given full opportunity to cross examine the said witnesses specially as the said statement were recorded forthwith. T have taken into consideration the above submissions made by the learned advocates before me and ave gone through the Record and proceedings of the learned trial court as well as the impugned judgment. It is admitted position, that there existed admitted enmity btween complainant side and appellant's side. PW 4 Mubarakali in his statement before the learned trial court has categorically stated, that PW 5, 6 X 7 reached vardat, after incident was over. PW 6 & 7 did not at all support prosecution case and were declared hostile. No reliance can be placed on the statement of PW 5, in view of the statement of her son. PW 4, as her presence at the time of actual incident is doubtful, Recoveries mashirs are also related. PW9 Ismail as we!! as PW. 10 Abdul Razak mashirs of arrest and allege recoveries did not support prosecution case atall, but still were not declared hostile by prosecution. In view of this no reliance can be placed on such recoveries on the basis of I. O., against whom P. Ws have alleged compulsion for their statements u/s 164 Cr. f, C It would not be safe to rely on 164 Cr. P. C. statements of PWs 6 & 7. as subsanatial piece of evidence, as these witnesses have alleged arrest etc. against I. O. PW 4 Mubarakali talks of Lathi injury to medical evidence brought on record. by acquitted accused according In view of above facts on record, in my opinion prosecution has failed to establish its case beyond reasonable doubt against the appellant. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in above appeal. (TQM) Appeal allowed.

PLJ1983 CR375 PLJ1983 CR375 Present ; samdar muhammad J EJAZ MAHMMOOD-Petitioner versus Mst. HUMAIRA & 2 Others—Respondents Cr. Misc. No. 293-Q/1982, heard ob 27-6-1983. <i) MUSLIM Family Laws Ordinance (VIII of 1961)—

S. 6 (5) (6) read with West Pakistan Rules under Muslim Family Laws Ordinance, 1961—R. 21 —Second marriage — Contract without permission of Arbitration Council—Offence of—Complaint regarding—Aggrieved person—Petitioner marrying respondent No. 1 without disclosing her factum of. his previous marriage— Held: Second wife also to be aggrieved person to file complaint in circum­ stances of case. [P. 371]A <il) Criminal Procedure Code (V of 1898}- -—S. 561-A read with Muslim Family Laws Ordinance (VIII of J961) —S. 6 (5) (b) and Rules framed under Ordinance—R. 21—Second marriage— ontract of without permissions of Arbitration Council— Offence of—Proceedings an complaint of Chairman—Quashffleut of— Proceedings initiated and continued on complaint filed by Chairman — Held: Complaini having not been filed by aggrieved person, proceedings pending ia Court of Magistrate to be quashed. [P. 37S]B&C Mr. J.y. Gardner. Advocate for Petitioner. Mr. M. Azhar Sheikh, Advocate for Respondent No. 1. Nemo for Respondent No 2. Date of hearing : 27-6-1983. judgment Afsii Huraira, respondent No. 1 filed an application before Chairman, Union Committee No. 36, Qulberg South, Lahore, against the petitioner, for initiating proceedings under Section 6(5) (6) of the Muslim Family Lawr Ordinance, 1961. She briefly stated therein that the petitioner had married her without informing her that he was already married and without taking necessary permission for entering into second marriage. The Arbitration Council issued notice to the petitioner to file written reply. The petitioner filed written reply in which he did not deny the subsistence of his first marriage. He failed to produce an\ permission from the Chair­man, Arbitration Council for entering into second marriage. While appli­ cation was pending proceedings, the Deputy Commissioner, Lahore entrus­ ted the application to Chairman, Union Committee, Ward No. 35, who after considering the application directed that a complaint be filed against the petitioner in the Court of A.C. Cantonment, under Section 6(5)(d) of the Muslim Family Laws Ordinasice. 1961. Thereafter, the complaint was filed on bebalf of the Chairman, Union Committee No. 35, Gulberg, Lahore, against the petitioner in the Court of Assistant Commissioner (Cantt,) Lahore, for proceeding against the petitioner under Section <5t5)(6) of the Muslim Family Laws Ordinance. The application/complaint filed by Msi. Hursaira was also attached as Annexure A, for ready reference. The learned Magistrate after receipt of the complaint vide order dated 8-2-1982 directed the petitioner to appear before him on 15-2-1982. The petitioner after appearance submitted an application under Section 249-A, Cr. P.C. The application was dismissed on 16-6-1982. The petitioner challenged (he order of the Magistrate by way of filing a revision petition under Section 439-A. Cr. P.C., which was dismissed by Additional Sessions Judge, Lahore, vtde order dated 8-11-1982. The petitioner has challenged the orders of both the lower covirts by way of petition under Section 561-A. Cr. P.C, 2. Learned counsel for the petitioner has challenged the proceedings on the grounds— is) That the Chairman, Union Committee had no authority to file a complaint as he is not an aggrieved person in terms of rule 21 of the rules framed under the W.P. Muslim Family Laws Ordi­nance and as such there is no proper complaint before the, trial Magistrate. (b) That even if the Chairman had the authority, he could not have proceeded on the application of Msi, Humaira, who being second wife of the petitioner, cannot be deemed to be an aggrieved person, as at the time of seeking permission for second marriage, it is the first wife whose consent or refusal has to be considered. (€} That the learned trial Magistrate on receipt of complaint without recording the statement of the complainant, issued notice for appearance of the petitioner, which is in violation of Section 200 Cr. P.C., according to which recording of statement of the com­ plainant is incumbent. Reference has been made to Section 190 Cr. P.C. and Rahim Dadv. Slate etc. (1980 P. Cr. L.J. 500), Slate v. Mvhemmsd Ghufran etc. (1971 P. Cr. L.J. 792), Mst. Khatija . State etc. (PLJ !973 Kar, 279=PLD 1978 Karachi 348) and Alt Muhammad v. Bagh AH [PLJ 1975 Cr. C. (Lab.) 361], 3. On behalf of respondent No. 1, it has been argued— (a) That the petitioner had duped her by posing that the petitioner was unmarried and that had he acted in accordance with law and got permission from the relevant authority for second mar­ riage, she would have come to know of his first marriage. &ad Laws Ordinance, had attached the application/complaint of the respondent as Annexure A, but the fact remains that the Chairman had filed the regular complaint before the Assistant Commissioner (Cantt.) Lahore with the prayer on his behalf'that the respondent may be proceeded against according to law and be suitably punished.' The learned Assistant Com­ missioner had passed on this complaint for disposal to the Ilaqa Magistrate. The order of the Assistant Commissioner for disposal of the complaint was not passed on the application/complaint of the respondent. Obviously, the learned Assistant Commissioner had treated the complaint filed by the Chairman as complaint. The learned Magistrate also while entertaining the complaint had recorded :— 15-2-1982 )& + fljJI ^ £ It is clear from the above " t wording of the order "l>i J^- 'i| »UsJ" is reference to the complaint received with the order of the Assistant Commissioner. It is obvious from the order of transfer made by the Asstt. Commissioner and from the order of summoning the petitioner by Magistrate that both of them had initiated action and proceedings on the complaint filed by the Chairman. Union Committee After 8-2-1982, the case was adjourned for five times, No body has been shown to have appeared on behalf of respondent No. 1. The order dated 24-5-1982 shows that on behalf of Chairman, Union Com­ mittee. P.S.I, and Syed Baqir Ali Shah, Advocate, had appeared. There­after, also Syed Baqir Ali Shah, Advocate, had appeared on behalf of Chairman, Union Commistee. It is apparent that the Chairman was pursuing the case as complainant and had engaged a counsel. In the circumstances, it is not possible to grant that the Magistrate was proceed­ ing on the application/complaint of respondent No. 1. It is clear from the above narration of facts that the proceedings were initiated and continued £ on the complaint filed by the Chairman, Union Committee, who had been represented through a counsel. It is thus obvious that the complaint has not been filed by an aggrieved person and as such proceedings pending in the Court of the Magistrate have not been filed in accordance with law. Since I have held that the proceedings have not been filed in accor­ dance with law, I do not think that it will be of any use to give any finding on the contentions raised by the learned counsel for the petitioner regard­ ing legality or otherwise of procedure adopted by the Magistrate after issue of process against the petitioner without recording the statement of the complainant. The proceedings are quashed only on the ground that the complaint has not been hied by an aggrieved person in terms of the pro­ vision of rule 21 of the rules framed under the W.P. Muslim Family Laws Ordinance, as the continuance of the same will be an abuse of the process of law. There will be no bar to file frcsn complaint in accordance with law by any of the aggrieved person, subject of course to any time limitations. (Aq. By.) Proceedings quashed.

PLJ 1983 CR379 PLJ 1983 CR379 Present : saad saood jan, J AHMAD KABIR—Appellant versus THE STATE—Respondent Criminal Appeal No, 284-C/1982, decided on 10-8-1983. (i) Airport Security Force Act (LXXVII of 1975)— ——Ss. , 3 & 6—Airport Security Force—Officers and members of— Powers conferred under Act—Limitations on—JffW : Act LXXVII of 1975 being Special Act creating force to deal with special pro­ blems arising at airports, powers conferred under it not to be governed or overridden by provisions of Customs Act (IV of 1969). [Pp. 380 < 381] B (ii) Airport Security Force Act (LXXVII of 1975)—

S. 6 (1) (a)—Airport Security Force—Powers of officers and members of—Held: Expression "to take effective measures" being wide enough to include power to conduct search as well as to detain person found smuggling narcotics. [P. 481] C (Hi) Customs Act (IV of 1969)—

Ss. 2(s) & 156 (1) (8)—Goods—Smuggling of— Held: Word "Smuggle" having been used only with reference to certain goods either mentioned expressly in definition itself or notified by Govt. acs of smuggling to relate to such goods mentioned in definition before same constitutes offence under (tern No. 8— Held further : Bringing in or taking out goods not covered by definition being no offence under Item No. 8, same to fall to be penalized under Item No. 9. [P. 391] D (it) Customs Act (IV of 1969)—

S. 156 read with Criminal Procedure Code (V of 1898)—S. 382-B— Punishment—Period of detention—Commutation of—Special Judge while passing sentence not taking into consideration period ent by appellant under detention before his conviction— Held : Trial Court having acted in violation of provisions of S. 382-B of Act V of 1898, sentence of imprisonment to be reduced accordingly. [P. 381} E (t) Criminal Trial —

Witness—Solitary—A S.I. of Airport Security Force—Testimony of—A.S.I, of Airport Security Force deployed for duty at personal search cabin at airport recovering two bags of heroin from underjeans worn by appellants—Such witness not shown to have any enmity with or motive to falsely implicate appellant in case—Witnes even not suggested in cross-examination about his alleged demand for bribe— Held: There being no reason whatsoever, testimony of witness not to be rejected—Customs Act (IV of 1969)—S. 156(1) (8). [P. 380) 4 Mr, M, Bashir Malik and Mr. M.A. Sattar Khan Rajput, Advocates fo' Appellants. Sh. Msgbool Ahmad-H, Advocate for Respondent. Dots of hearing : 24-7-1983. judgment The appellant, Ahmad Kabir (aged 28 years), an Afghan national, was convicted by the Special Judge (Customs), Lahore of an offence under section 157 (I) (8) of the Customs Act, i969 and was sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 5.000/-; in default of payment of the fine he was ordered to receive simple imprisonment for a further period of six months. The appellant has filed this appeal against bis conviction and sentence. 2. According to the prosecution in the early afternoon of 20-7-1981 the appellant went to the Lahore Airport to catch an Indian Airlines flight for New Delhi. A.S.I. Saeed Iqbal (P.W. 5) of the Airport Security Force was at the relevant time deployed for duty at the personal search cabia at the airport. The appellant was wearing jeans and showing signs of nervousness. A.S.I. Saeed Iqbal (P.W. 5) felt suspicious and searched the appellant. He recovered two plastic bags from under the jearn tied to the testicles. These bags contained 345 grams of herein worth Rs. !,GO.QOO/- (about). The appellant was arrested and a case under section 156 (1) (8) of the Customs Act was registered.against him. 3. The appellant pleaded not guilty at the trial and dented that any heroin was recovered from his person. He did not lead any evidence in his defence. 4. The case of the prosecution rests mainly on the testimony of A.S.I. Saeed Iqbal (P.W. 5). He supported the story of the prosecution and stated that he had recovered two bags from under the jeans worn by the ppellant. There is no reasoc whatsoever why the testimony of this witness should be rejected. He had no enmity with the appellant and no motive to falsely implicate him in this case. The appellant stated before the trial Court that the security officer demanded bribe from him and that when he refused to oblige him he falsely implicated him in this case. However, when A.S.I. Saeed Iqbal (P.W. 5) appeared in the witness-box he was not questioned at all about this alleged demand. Quite clearly this is an after thought and a mere attempt to create a defence. 5. The learned counsel for the appellant contended that under section 160 (1) of the Customs Act only an Assis^nt Collector of Customs was competent to make a search. A.S.I. Saeed Iqbai (P.W. 5) was not a customs officer and for tbat reason he was not competent to carry out a search of the appeiiaot. Thus the entire proceedings conducted by this officer were illegal. It seems difficult to subscribe to ?bg contention of the learned counsel. As already mentioned A.S.I. Saeed Iqbai {P.W. 5} was an officer of the Airport Security Force. Under section 6 (e) of the Airport Security Force Act, 1975 he was inter-aiia competent to 'take effective measures' for prevention of smuggling of narcotics and while taking the said measures be was, under sub-section (2) of the same Section, entitled to exercise all the powers possessed by an officer iccharge of a ^Police Station under the Code of Criminal Procedure, it is to b« noticed /that (he Airport Security Force Act is a Special Act, creating a force to deal with special problems arising at the airports. The power conferred upon it by the Act are not governed or over-ridden by the provisions of the Customs Act. The expression 'take effective measures' is wide enough to include the power to conduct search as well as to detain a person found smuggling narcotics. It is difficult to conceive how a member of the Airport Security Force can take effective measures to prevent smuggling if be is not even competent to search a suspect. I am therefore unable to accept the contention of the learned counsel that A. S. I. Saeed fqbal (P.W, 5) had acted illegally in searching the appellant, 6. The learned counsel for the appellant then contended that carrying of narcotics was merely a violation of Item 9 of Section 156 (!) of the Customs Act and that the appellant could not be convicted under Item 8 thereof. This contention is also without any merit. There is clear distinction between the goods mentioned in Item No. 8 and those referred to in Item No. 9. The word'smuggle' has been defined in Section 2 (s) of the Customs Act, 1969. A perusal of this definition would indicate that this word has beep used only with reference to certain goods either mentioned expressly in the definition itself or as may be notified by the Federal Government. The act of smuggling must, therefore, relate to those goods as are referred to in the said definition before it can constitute & Dn offence under Item No. 8. Bringing in or taking out such goods as are not covered by the definition will not be an offence under Item No. 8 but fall to be penalized under Item No. 9. The case before me is one of narcotics and narcotics are specifically covered by the aforementioned definition. I am therefore unable to accept the contention that an attempt to take narcotics out of Pakistan is outside the scope of the offence created by Item No. 8. 7. Considering the circumstances under which heroin was recovered from the possession of the appellant I am satisfied that he intended to .take it oat of Pakistan. He was thus rightly convicted by the learned Special Judge of an offence under section 156 (!) (8) of th« Customs Act. The question of sentence however requires some consideration. Th appellant has been in custody ever since 20-7-1981. He was convicted by the learned Special Judge -on 14-2-1982. While passing the sentence the learned Special Judge did not take into consideration the period the ^pellant had spent under detention before his conviction. This was a 'violation of the provisions of Section 382-B of the Code of Criminal Procedure. Accordingly, I reduce the sentence to imprisonment for a period of two and a quarter years (2) years The sentence of fine does not require an interference. The appeal is disposed of accordingly. Sentence reduced.

PLJ 1983 CR381 PLJ 1983 CR381 Present: sardar muhammad, J ALLAH DITTA—Appellant versus THE STATE—Responoent Criminal Appeal No. 1016 of 1980, decided on 4-5 1983. (0 Criminal Tri.l-

Motive—Corroborative value of—Held: Motive cutting both ways not to lead to any corroboraelons to prosecution case. [P. 384J/4 (ii) Criminal Trial—

Witness—Related and interested—Corroboration—Requirement of— Held: Eye-witness account coming from related interested and inimical witnesses to require some independent corroboration. [P 384J5 (Hi) Criminal Trial-

-Recovery witness—Testimony of- Recovery witness related to deceased and not even coming from village qf alleged recovery— Held: Testimony of such witness not to be placed on higher level then that of chance witness and as such not to be relied upon as independent corroboration of eye-witness account. [P. 384]C Nemo for Appellant Mt. Nazir Ahmad Qureshi for Advocate for A G for the State. Date of hearing. 4-5-1983. judgment Allah Ditta, aged 40 years, son of Saleh, has filed appeal from jail, against the order dated 29-5-1980 of Sessions Judge, Gujranwala, whereby the learned Sessions Judge convicted the appellant under section 302 PPC for having committed the murder of bis brother-in-law, Allah Ditta son of Malla, at Sa'glwela during the night between 26tb/27th of February, 1979, in his house, situated in Ihatoa Karim Dad, Police Station Pindi Bhattian. F. I. R. (Ex. PH) was recorded by Muhammed Idrees, SI/SHO (PW 9) at 6. 30 a. m. on 272-1979, on the statement of Mst. Rajan (PW 7), sister of the deceased. 2. The appeal has been filed from jail. The appellant is not represented by any conusel so I proceed to decide the appeal with the assistance of the learned counsel for the State. 3. The prosecution case is that Mst. Rajan PW, who was sleeping in her house, got up at Sarglwela on 27-2-1979 for urinating. She saw the appellant and his brother Malla (acquitted accused) standing near the ont of her brother, Allah Ditta deceased, who was sleeping under the Mara. After raising Lalkara that they will teach a lesson to Allah Ditta deceased for abducting Mst. Khurshid, the accused launched an attack on the deceased with the weapons they were holding. On the noise raised by Mst. Rajan PW, her son Ahmad Ali (PW 8), Aslam, her nephew, and Nazir Macbhi, neighbour of the complainant, also reached the spot and witnessed the occurrence. It is the prosecution case that the accused were identified by the witnesses in the light of the electric bulb fixed in the courtyard. The motive for the occurrence was that Allah Ditta appellant, who was husband of Mst. Nuran, sister of the deceased and the complainant, had married Mst. Khurshid, widow of his deceased brother Jalla. The deceased feeling aggrieved that the appellant had taken second wife during the life-time of his sister, developed illictit releation with Mst. Khurshid and abducted her, a year prior to the occurrence. Mst. Khurshid was, however, returned by the deceased on the intervention of Khan and Waryatn, who had asked the deceased to return Mst. Khurshid on the request of the appellant. The complainant's case is that the appellant had felt insulted over the cultivation of illicit relationship by the deceased with the wife of the appellant and her abduction by the deceased later on. 4. Aslam and Nazir PWs, who are mentioned as eyewitnesses in the FIR, were given up at the trial as having been won over. Afst. Rajan (FW 7) and her son Ahemad Ali (PW 8) were examined for the eyewitness account. Both of them have briefly stated that they had seen the appellant and his brother Malla giving injuries to the deceased with hatchets in the light of the electric bulb that Sarglwela along with Aslam and Nazir PWs, who had reached the spot after hearing noise. Mst. Rajan PW has also deposed regarding motive. Evidence of recovery of blood-stained hatchet (P. 7) on 1-3-1979 at the pointing out of the appellant has also been led through Muhammad Ashraf (PW 6) and Muhammad Idris, SI (PW 9). Both have corroborate! each other while stating that the appellant had after making statement led to the recovery of hatchet (P. 7) from his residential house, which was taken into possession vide memo. Ex. PJ, which was also attested by Sohna PW (not produced). 5. Ch. Muhammad Sadiq, Medical Officer, who had conducted postmortem of the deceased appeared as PW-2. At the time of post­ mortem examination, he noted in all nine injuries on the body of the deceased, According to his opinion the deceased died because of shock and haemorrhage, which resulted due to injuries No. 1, 2, 3 ane 9, which have been described as under :— (1) Oblique stab wound 12 CM x 3£ CM on the right part of epigastrium. (2) Oblique stab wound. 6} CM x 1J CM on left part of epigastrium. Loops of small and large intestines were protruding out from the above mentioned two injuries (3) Transverse stab wound, 6 CM x 2 CM on back chest right part, 6 CM down to inferior angle of right scapula. (4) Oblique stab wound 3 CM x 2 CM on left part of front of abdomen 4j CM above and out to umbilicus and 2$ CM away of midline of abdomen. 6. The appellant took up the plea of false involvement. He denied lhat the deceased had developed illicit relations with Mst. Khursbid, his second wife, or that he had abducted her. In answer to the question why this case against him. he stated ;— "Mst. Nooran sister of Mst. Rajan complainant wcs married to me. On the death of my brother Jalla, I married his widow Mst. Khurshid and this caused annoyance to Mst. Rajan who wanted me to divorce her sister Mst. Nuran but I was not agreeable to this proposal. Some time prior to the occurrence, Mst. Rajan P. W. took her sister Mst. Nuran to her house. It is for this reason that she got me and my brother falsely implicated in this case." 7. I have gone through the evidence and have considered the argu­ ments advanced by the learned counsel for the State. 8. During trial suggestions put to A/5?. Rajan (PW 7), on behalf of the appellant, that the deceased bad illicit relations with Mst. Nasreen, a girt belonging to Bhatti tribe, who was married in village Pindi Buta Singh, that no electric bulb was, on, at the time of occurrence and that the occurrence remained unwitnessed and they had seen in the morning the deceased lying murdered, were denied. Similar suggestions to Ahmad Ali PW were also denied by him. The suggestion that Mst. Kburshid was not abducted by the deceased was also denied by P. W. 7. Ahmad Ali PW, who is son of the complainant, has, however, not made any statement regarding the motive part of the prosecution story. 9. The admitted facts are, that Mst. Rajan (PW 7) is real sitter of the deceased, Ahmad Ali PW is her son, Muhammad Ashraf (PW ,6,) attesting witness of alleged recovery of blood-stained hatchet (P. 7) at the pointing out of the appellant, is son of first cousin of the deceased and Mst, Nuran, sister of the complainant and of the deceased was married to the appellant, who had later married Mst. Khursbid, widow of his brother. It is also the prosecution case that the complainant and the deceased bad: felt aggrieved over the marriage of the appellant with Mst. Khurshid and the deceased had gone to the extent of abducting her after cultivating illicit relations with her to avenge the second marriaee by the appellant. Although the prosecution allegation of abduction of Mst. Khursbid by the deceased is denied by the appellant but the fact remains that the parties had developed strained relations. It is not difficult to hold that this mative would cut both ways. If this can be alleged as the motive for the appellant to have murdered the deceased, it can also be considered as a motive for false implication of the appellant, In view of this I do not think that the motive story can lead any corroboration to the prosecution case. The eyewitness account, as noted above, is coming form related, intersted and iaimcal witnesses, which requires some independent corroboration. ? or their corroboration, the prosecution can fail upon the medical evidence tnd the evidence of alleged recovery of bloodstained hatchet (P. 7). According to the opinion of the doctor the deceased had suffered four stab wounds, which were the cause of death. The doctor has stated that the stale wounds could have been caused, by a sharp-pointing weapon with cutting edge or edges. The eyewitnesses have categorically stated that the appellant or for that matter his acquitted co-accused were armed with hatchets and had caused the injuries with hatchets. This account stands contradicted by the medical evidence. Obviously, the medical evidence not only does not lead any corroboration to the eye-witness account but contradicts the same. The claim of the eye-witness that they bad identified the appellant in the light of the electric bulb is also doubtful for the reason that the prosecution has not been able to establish beyond reasonable doubt that any bulb was affixed at the point stated by PWs. The Sub Inspector did not mention the existence of the bulb in his inspection note. There is no mention of the existence of bulb in the site plan either. It has been stated clearly by Ms!. Rajan PW that it was a dark and cloudy night and without the electric bulb the assailants could,not have been identified. Mubammed Ashrsf, the {recovery witness, is also related to the deceased. He does not belong to It he village where from (he alleged recovery of hatchet was effected, His Cjiestimony cannot be placed on a higher level than that of a chance witness land as such cannot be relied upon as an independent corroboration of the (eye-witness account. In {his view of the matter, no implicit reliance can be placed on the evidence of the prosecution. The prosecution has failed to prove the case agaimt the appellant beyond reasonable shadow of doubts. The appellant is. therefore, acquitted on the basis of benefit of doubt. He shall be released forthwith if not required in any other case, ^ Appeal accepted.

P L J 1983 CR385 P L J 1983 CR385 (Multao Bench) Present: M. zaFFAR ullah. J AKHTAR ALI—Appellant versus THE STATE—Respondent Criminal Appeal No. 348 of 1980, decided on 7-5-1983

Motive—Proof of—Deceased alleged to have teased oneofcoaccused six months before occurrence but no details of joke or insult ever given — HeU : Motive being no serious affair to become doubtful particularly in view of comparative more recent occurrence of injury having been allegedly cause by deceased and others to another person. fP. 386]-4 WitneH—Chance—Witness at some distance from place of occur­ rence seeing only by chance assault being committed on deceased at about 7 p. m.-~Held: Explanation of witness appears to be too convenient to be true. [P. 3S6]£

Way laying— intention— Held : Waylaying of person ordinarily to be planned affair. [P. 387]C PAKISTAN PENAL CODE (XLV of I860)— . 302—Murder—Appraisal of evidence—Night time occurrence appearing to be unwitnessed—Deceased also in habit of getting involved in unsavoury incidents—Evidence led by prosecution not inspiring confidence— Held: Case against appellant being not free from doubt, appellant to be acquitted of charges against him. [P. 387] DAE Sartor Mkmad LatifKfian Khosa, Advocate for Appellant. Advocate for Respondent. 7-5-1983. judgment Akhlar Ali appellant and his two co-accused Dilbar Hussain and Zulfiqar Ali were tried for an offence under section 302 PPC for committing the murder of Faiz Muhammad on 18-5-197,7 at 8.45 P M, in the urban area of Karor on a road side leading to a cineina. At (he trial the co-accused of the appellant were acquitted as they were found to be empty handed but the appellant was convicted and sentenced to imprisonment for life and to a fine of Rs. 1000/- or in default of payment of fine to undergo further R.I. for six months. He was further directed to pay a compen­ sation of Rs. 1000/- or to suffer further imprisonment of six months R.I. This appeal is directed against the conviction and sentence ordered by Ahmad Nawaz Malik learned Additional Sessions Judge Muzaffargarh on 20-1-1980, 2. The case of the appellant is that it was an unwitnessed occurrence and the three eye witnesses produced are not only chance witnesses but are interested. It has also been urged on behalf of the appellant that the case against the appellant is not free from doubt. 3. The motive for the occurrence is stated to be the misco ductzof the deceased against Dilbar Hassain, a co-accused of the appellant, according to which the deceased had teased Dilbar Hussain about six months before the present occurrence. Akhtar Ali is stated to be a friend of Oilbar and had a grudge against the deceased on that account and is stated to have taken revenge of the insult.by committing murder of Faiz Muhammad deceased. No. details have been given of the joke or the insult given by the deceased to Dlibar Hussain but from all appearances, this does not appear to be a serious affair particularly when a period of six months elapsed between that incident and the present occurrence. The motive becomes doutful particularly in light of a comparatively more recent occurrence in which one Murid Abbas had been injured and a case was registered against the deceased and some others including Mukhtar Hussain P.W. 7. 4. The inm"»es on the person of the deceased also raise certain questions pariisxilarly injury No. 5 which is a punctured wound 1/3x 1/5 X 2" in the anus. This particular injury is peculiar and tends to show that the assailants were not only angry but wanted to humiliate the deceased presumably on account of some misconduct on behalf of the deceased. The evidence led in the present case does not show any material which may explain this aspect of the case. The incident involving injury to Murid Abbas mentioned above also assumes importance because that incident took place only two weeks before the present occurrence but the police did not register the case until a direction was given by the High Court four months later on. The possibility that the present occurrence was the result of the frustration faced by the complainant in that case could not be excluded. 5. As regards the eye witnesses, PWlOGhulam Qadir is brother of the deceased. He lodged the report regarding the occurrence with the police. The report itself appears to have been lodged promptly although the defence has been able to show that the police had the oppor­ tunity of updating the report as the daily diary facilitated adequately. The important fact, however, remains that Ghulam Qadir P W saw the occurrence only by chance when he came looking for his brother, the deceased at about 7.00 P. M. the same evening. He was at some distance from the deceased when he saw the assault being committed on biro. This appears to be too convenient to be true. The other two witnesses Shaukat P W 8 and Faqir Muhammad P. W 9 are said to have been in the company of the deceased when the occurrence took place. These two are also chance witnesses. They have tried to show that they wanted to seethe film as did the deceased but instead of seeing the film they decided to have a walk and were waylaid by the assailants at the place of occur­ rence. This 'storv does not appear to be probable. Waylaying of person is ordinarily a planned affair. If the deceased had come to se th film and instead decided to take a walk there could be no waylaying as the assailants would have no means of knowing before hand that the victim will pass that way. Shaukat P W is also related to the deceased although he tried to conceal the relationship. Similarly, Faqir Muhammad P W is not only is the neighbour of the deceased but the land underneath the house where he lives was given to his family by the forefathers of the deceased, .some members of the family of which he still serves as a moten. No reliance could, therefore be placed on the testimony of Shaukat or Faqir P. Ws. 6. The deceased appears to be a person who is in habit of getting involved in unsavoury incidents. The incident of teasing Dilbar has beet advanced by the prosecution itself while the hurt case against the deceasec as been proved by the defence and has been admitted by P W 7 Mukhtar Hussain. The place of occurrence has bushes around it and some pits. It is a night time occurrence and appears to be unwitnessed and the assault on the deceased could have been made by one of the persons inimical towards him. The complainant, a brother of the deceased admits that the deceased had a number of enemies, so much so that he had for bidden him to go out.. 7. In view of the above discussion, I am of the view that the evidencej led by the prosecution does not inspire confidence and the case againstL the appellant is not free from doubt. This appeal is, therefore, allowed} and the appellant is acquitted of the charges against him. He is on bail.) He is discharged of the bail bonds. (MIQ) Appeal allowed-

PLJ 1983 CR387 PLJ 1983 CR 387 Present: fazl-i-mahmood, J MEHDT HASSAN SHAH—Appellant versus malik KHIZAR HAYAT KHAN, Sessions Judge. Gujranwala & Others—Respondent Writ Petition No. 1982 of 1983, decided on 19-4-1983. (i) Criminal Procedure Code fV of 1898)—

S. 173 (3)—Order, cancelling case on police report—Order of Magistrate in substance cancelling case on police report filed u/s. 173 Cr.P.C., not to be treated as discharge nor to amount to it unless evidence has been recorded—Such order being administrative in nature not to be open to interference in revisional jurisdiction u/ss. 435, 439 and 439-A Cr.P.C. [P. 392] A PLJ 1979 Cr.C. (Lah.) 531 ; PLD 1975 Lah. 373, 1970 P.Cr.L.J, 178 ; PLD 1962 Lah. 405 & PLD 1949 Lah. 537 rel. (ii) Crlmiaai Procedure Code (¥ of !898)— -—Ss. 56I-A, 435, 439 and 439-A.—Suo motu revisions! powers—Ex­ ercise of—Qaasbment of proceedings—Criminal case registered against accused-petitioner—Police subsequently making report «/s. 173 Cr.P.C. to Magistrate for cancellation of case on ground of there being insufficient evidence against accused asa result of investigation —No evidence recorded at trial—Magistrate cancelling case- Sessions Judge seising aside order of Magistrate in exercise of his sue motu rcvssiona! jurisdiction— Held: Order of Magistrate on being properly construed and in substance being order cancelling police case, Sessions Judge, held fell into serious legal error in treating it as order of discharge— Held further: Order of Sessions Judge being contrary to law as laid down by supperior Courts same to be liable to bs quashed—Provisional Constitution Order (CMLA's 1 of 1981). Art. 9, [P. 392,393 & 395} B, C. J PLJ 1981 SC 895 ;'PLJ 1979 Cr.C. (Lab.) 531 ; 1970 P.Cr.LJ. 178 ; PLD 1962 Lab. 405, PLD 1949 Lah. 37 and PUD J975 Lah. 373 rtf. i tii) Jsradietioa—

Assumption of—Held: Motive or intention, however laudable, no! m constitute valid basis of assumption of jurisdiction—Court precluded under law from exercising same. [P. 393] D (iv) Bail— "

Order of—Effect of— Held: Bail granting orders not to be strtcto senso judgments and any observation made by Court in course of it being tentative and not determinative to be confined to those proceed­ ings— Held further : Opinion expressed in bail order not to influence Court ai trial or subsequent proceedings of other kind in respect of such accused. [P. 393] E (v) CrIMINAL Procedure Code (V of 1898)—

Ss, 435, 439 & 439-A—Revisioaal jurisdiction— Suo motu exercise of—Reasons or findings for— Held : Reasons or findings given by Court on merits of case not to be blessed with any sanctity in case of Court having no jurisdiction in matter. [P. 394] F Criminal Proeedere Code {V of 1898)— ——S. 173 (3)—Power of Magistrate, exercise of—Magistrates exercis­ ing power under section 173(3) Cr.P.C. not to act as powers in bands of police and pass mechanical orders without application of their conscious mind to facts and material placed before them notwithstanding fact of no evidence in case having been recorded by Court— Held further : Power to cancel police case being of wide amplitude and having effect of bringing to a bait Criminal prosecution which otherwise would entail a detailed process, such power, by its very nature, not be designed to be exercised on mere ipse dtxit of police—Orders affecting criminal prosecution, whether administrative or judicial in character,'must flow from full applica­tion of mind of Magistrates to facts of given case and decision must he made ob considerations of purpose of law and advancing interest of justice. [P. 395] GAB PLJ 1977 SC 9! ft PLJ 1982 SC 27 re/. Mr. M. Afzal Niazf, Advocate for Appellant, Mr. Imtlaz Ahmad Ch. for Respondent No. 2. Nemo for Respondent No. 1. Date of hearing : 12-9-1982. JUDGMENT This Constitutional petition seeks annulment of & revisional order of learned Sessions Judge, Gujranwaia under the Criminal Procedure Code, whereby an order of a Magistrate on a police report cancelling ifae ease registered against the petitioner was set aside, 2. The brief facts of the case are that a case F. I. R. No. 6i dated 24-3-1982 was registered under section 379 P.P.C. at Police Station Qiia Didar Singh District Gujranwaia on the written complaint of BasfaJr Ahmad on the allegation that Wagon No, 8304 GT was forcibly taken possession of by the petitioner on 27-2-1982 on the plea that the complai ant had not paid the balance of instalment of Rs. 750Q/- as per agreement deed of the parties. The petitioner on registration of the case moved a bail before arrest application before the learned Sessions Judge, Gujranwaia who allowed the interim bail but refused to confirm it by order dated 5-4-82. The case of the petitioner is tba! he was also a patient of cancer. The learned Sessions Judge also ordered suo mtttu that section !? of Ordinance^VI pi' 1979 be added. This, it is stated, was done by the police and the petitioner was taken intc custody on the same day. 3. Thereupon the petitioner again moved the learned Sessions Judge for bail after arrest on 20-4-82. The case was adjourned on two dates and then was fixed for bearing on 8-5-1982. There was a development ir, the meanwhile inasmuch as the complainant Bashir Ahmad moved the Superintendent of Police, Gujranwaia for the cancellation of the case on 29-4-82 and also gave an affidavit before the Investigating .Officer _to the effect that the case was false and should be canceiled. The police accord­ ingly made a report under section 173 Cr. P. C. and put up before a Magistrate Section 30, Gujranwaia who canceiled the case on 5-5-82 though the phraseology employed was of discharge of the accused. The petitioner was accordingly released from Gsjjrnnwala Jail. The bail application in the circumstances was withdrawn by the learned counsel for the petitioner from the Court of learneo Sessions Judge on 8-5-1982, The learned Sessions Judge passed the following order on 8-5-1982 :-~ "The learned counsel for the petitioner states thai the application has becSme infructoous because case against the petitioner has been cancelled as he isas been set at liberty. In view of the above, the application stands finally disposed of,' 4. Thereafter on 23-5-82, a aew chapter opened up in Shis matter. The learned Sessions Judge on this date passed an order, inter alia, in term "Prima facie there appears no good reasons to cancel the case, there­fore, I want to take action in exercise of my suo motu revisional jurisdiction..." It was followed by an order dated 15-6-1982 when it was observed by the learned Sessions Judge that the record pertaining to discharge of Mehdi Hassan Shah be requisitioned from the Court of Mehr Ali Akbar M.I.C. for 5-7-82. The S.H O. shall bring the record on the said date. He shall file written statement containing the entire facts and the reason on which he got discharged the accused. It was further directed that it should be mentioned in the written statement as to whether (he recommendation for discharge was made after recording statement of alleged eye-witnesses or not. The proceedings of 5-7-82 show that the written statement was submitted by the S.H.O. which was placed on the record. The case was adjourned because the police report and the order of the Magistrate had been received but "the judicial file" had not been received. He accord­ ingly order that "now the learned Magistrate shall be summoned to appear personally alongwith the 'relevant judicial file' on 10-782. S.H.O. shall also appear. P.D.S.P. shall also be asked to appear before me on the said date." 5. On 10-7-82, the learned Sessions Judge recorded an order to the effect that he proposed to dispose of suo motu revision under section 435 read with sections 439 and 439-A Cr.P C. After giving she facts and circumstances of the case, the learned Sessions Judge in para. 3 of his order recited He reasons for his declining to confirm the bail of the accused and for rejection of the same. Then coming on to the relevant aspects, he observed that as neither the report of M.S. nor the record was produced before him on 29-4-82 therefore the bail application was adjourned to 3-5-82 but the same could not be disposed of on that day for want of medical report. Hearing of the bail matter was then adjourned to 8-5-82 when he was informed by the learned counsel for the petitioner that he had already been discharged by the Magistrate and "since the discharge of the accused was unusual and moreover there was loud whisper that the accused had manoeuvred bis release by some foul means, therefore, in order to safeguard the honour of this Court and respect of law of the land, decided to probe into the matter in exercise of my suo motu revisional jurisdiction." He accordingly issued notice to the re pondent accused as well as to the S.H.O , the learned Magistrate and the State. This furnishes the background and the circumstances in which the revisional proceedings were undertaken by the learned Sessions Judge, 6. After hearing both the sides, he concluded that in accordance with law, no doubt the Magistrate has power to discharge the accused on the request of the police but he was not expected to become tool in the hands of tb-e police and blindly sign the papers without applying his mind. He observed. "His every order is judicial order and open to revision by the Sessions Court as well as High Court." Again he observed :— "Apart from that, while disposing of the pre-arrest bail application, I had also held that prlma facie case against the accused was made out u/s. 17 of the said Ordinance. Since the said offence was exclu­ sively triable by the Sessions Court and moreover t bad observed that there was prima facie case against the accused still the learned Magistrate ignored all these aspects and passed illegal order ......................................................... " He finally ordered :— "In the light of above discussion, I feel that the impugned order is illegal and improper, therefore 1 set aside the same in exercise of my mo motu revisional jurisdiction. The accused was in jail when he was released on the basis of illegal order. The police as well as the learned Magistrate should get him arrested and send him to jail. The Police shall proceed with ihe case in accordance with law." Hence this criminal miscellaneous petition under section 561-A Cr P.C. A prayer has been made through a written application that in order to overcome any technical hurdle, the application be treated as a constitu­ tional petition and a Court-fee of Rs. 100/- has been affixed for that purpose. I ordered accordingly. 7. The impugned suo motu revisional order of the learned Sessions Judge has been assailed before me on the principal contention that the order of the Magistrate on a police report under section 173 of the Cr.P,C. was in fact and in substance an order of cancellation of the case which the Magistrate was competent to pass in terms of section 173(3) Cr.P.C. and it wat only as a misnomer that it was described as an order of discharge. The learned counsel for the petitioner submits that it was neither in fact an order of discharge nor couid be such an order because on the own showing of the learned Sessions Judge no evidence had been led at the trial. The order therefore, being in substance and reality one of cancel­ lation of the case, it was submitted, this was an administrative order which was not subject to scrutiny or interference by the learned Sessions Judge in his revisional jurisdiction. 8. Reliance has been placed by the petitioner on a Single Bench judgment of this Court given in criminal revisional jurisdiction In re : Mst. Fatima Blbi vs. Rana AH Hassan and 2 others (1970 P.Cr.L.J. 178). In the precedent case, a Magistrate had agreeing with the report of the police made under section 173 Cr.P.C., ordered the cancellation of case registered against the accused under sections 342, 347, 364 and 365/34 P.P.C. There was a revision petition filed before the High Court and the ground urged was that there was good ground for proceeding with the case and that the Magistrate's order cancelling the F.I.R. was not justified. The learned Single Judge relying on the Full Bench judgment of this Court in re: Wazlr vs. The State (PLD 1962 Lahore 405), held that the revision petition was not competent. The following dictum of the Full Bench deci­ sion was relied upon :— "Where a Magistrate has cancelled a case there is no occasion for the Sessions Judge to hold that the accused has been discharged or that consequently he has power to order the retrial. The accused can be discharged only if some evidence has been recorded. "Such a case does not fall within the revisional jurisdiction of the Sessions Judge and any order for further inquiry would be set aside by the High Court." 9. Next in line reference may be made to the decision of this Court In re; Bashir Ahmad vs. AU&qa Magistrate, Jaranwala and 4 others |PLJ 1979 Cr.C, (Lah.) 531=P.L.D. 1980 Lahore 28]. There was a revision petition filed before the High Court by a complainant in case registered under section 302/34 P.P.C. questioning the order of a Magistrate cancelling the police xase. The view taken in this case, on a reading of section 169 and section 173(3) Cr.P.C., was that accused if found innocent in police investigation and police in its report under section 173 Cr,P.C. also praying for discharge of accused found innocent, an order of discharge •" passed by a Magistrate on police report would tantamount to cancellation of a case against such innocent accused person. It was further held tbat order of discharge by a Magistrate of a person accused of an offence triable by a Court of Session therefore would be a valid order. Such an order was administrative in nature. Reliance for the last proposition bad been placed on a judgment of this Court reported as Sardar and other vs. Muhammad Ntwax and another (P. L. D. 1949 Lahore 537} decided by Kayani, J. Further support was sought from the Full Bench decision of this Court in the case of Waxir vs. The State already noticed above. In the ultimate analysis, it was held that recent amendment introduced by Law Reforms Ordinance, 1972 had not affected the powers of the Magistrate under section 173(3) to cancel a case triable by Court of Session. 10 The learned counsel appearing for the State while supporting the petitioner's case cited the case of BasMr Ahmad vs. Bashir Ahmad and other (PX.D. 1975 Lahore 373) decided by a learned Single Judge of this. Court for the proposition that where a Magistrate cancelled a case registered on the basis of police report under section 173 read with section 190 Cr.P.C., it did not amount to an order of discharge of accused based on merits after recording evidence. It was further held that the order of discharge passed in a case without recording evidence did not amount to an order of discharge as it was not an order on merits. The Hon'ble Judge in this case bad again relied on the decision of Waxir't coat. Counsel also relied on the case of Abdullah v. Khan Muhammad and another (1975 P.Cr.L.J. 680). This case does not appear to be directly applicable to the facts of the present case. However, an indirect benefit may be obtained from it inasmuch as on the facts of that case a petition under section 561-A Cr.P.C, had been dismissed on the ground that a Magistrate's cancellation of a case on police report under section 173(3) Cr.P.C. did not debar a complainant from lodging a private complaint. 11. From a review of the above precedents therefore, it seems clear that the view of this Court has been that the order of a Magistrate in substance cancelling a case on the police report filed under section 173 Cr.P.C. cannot be treated as discharge nor would amount to it unless some evidence had been recorded. Such an order would be administrative in nature and thus not open to interference in revisional jurisdiction under sections 435, 439 and 439-A Cr.P.C. 12. Coming to the facts of the present case, it is to be noticed that a criminal case had been registered against the accused petitioner. On the statement and affidavit of the complaint, who did not support his own case, the police statedly made a report under section 173 Cr.P.C. to the Magistrate that there was no sufficient evidence against the accused as a. result of the investigation. Since in this case no evidence had been recorded at the trial, the order in question on being properly construed was fa'n substance an order cancelling the police case. The learned Sessions JJudge therefore fell into a serious jegal error in treating it to be an Hprder of discharge and on that misconception to exercise his revisional (jurisdiction. 13. I mty further observe with reference to the interim order to the learned Sessions Judge dated 23-5-82 that he has himself observed therein "prtma facie there appears no good reason to cancel the case, therefore. I want to take action in exercise of my suo motu revisional jurisdiction." ;-It would thus appear that at the initial stages the learned Sessions Judge was himself conscious of the fact that the order with which he was propos- » ing to interfere was an order to cancel the police case. This aspect seems to have been lost sight of by the learned Sessions Judge when proceeding in the matter subsequently. The error of approach being apparent on th«~ face of the proceedings, the order of the learned Sessions Judge which runs contrary to the iaw as laid down by the superior Court and noted above is liable to be quashed. Reference may advantageously be made to Abdul RehmanBajwa'scase(P.L.S. 1981 SC 895). 14. I may however, deal with the further view of the learned Sessions Judge that the case was triable by him and therefore the Magistrate was not competent to cancel the case. The answer to this is to be found in the decision of this Court in re: Bashir Ahmad v. Allaqa Magistrate, Jaranwala ••>"• and four others noticed above. The concern for the propriety of the proceedings undertaken by the police or the learned Magistrate or loud-whispers about accused manoeuvring his release or "honour of this Court and respect of the law of the land" expressed by the learned Sessions Judge in his impugned order no doubt shows that he was motivated to act in the matter bonafide and in good faith. It ought not to have been overlooked at the same time that thel motive or intention, howsoever laudable, would not constitute a valid basisj^ for assumption of jurisdiction by a Court when under the law it is precluded!^ from exercising it. Moreover, one of the reasons which weighed with the! learned Sessions Judge in arriving at the impugned decision was that the learned Magistrate had acted in oblivion of the observation of the learned Sessions Judge made in the bail order to the effect that a prtma facie case was made out against the petitioner. The learned Sessions Judge in . taking this view overlooked that bail granting orders are not stricto sense

judgments and any observation made by the Court in the course of it are confined to those proceedings. It is settled law that opinion expressed in a bail order is not to influence the Court at the trial. They are also e not to influence subsequent proceedings of other kind in respect af such an accused. They are by their very nature always tentative and not 4 determinative. This enunciation of law and rule of caution has oeen often reiterated by superior Courts and the learned Sessions Judge ought hot to have acted in ignorance of it. The question of propriety may have arisen in a case where after the bail on merits was disallowed by a Sessions Court, a learned Magistrate was to allow it on the same material and grounds. In the present case, however, the complainant himself was not supporting his case and had sworn an affidavit that the case was false. This certainly constituted fresh material and circumstances on the basis of which police report was made and the Magistrate passed the order cancel­ ling the case which was an order altogether of nature different from a bail order. The impugned order of the learned Sessions Judge, therefore, being based on an irrelevant consideration, would stand vitiated. The competency of the Magistrate to pass the order of cancellation of case and the conditions and quaiifioauons for exercise of jurisdiction were conceded on behalf of the State. 15. It is unnecessary to deal with other reasons that the learned Sessions Judge has advanced in this case for the simple reason that it has been found and held that he had no jurisdiction to interfere in revision Iwith the order of cancellation of case passed by the Magistrate. It is -(enough to observe that if a Court has no jurisdiction in the matter, the Jreasons or findings given by it on merits of the case cannot be blessed with Jany sanctity. 16. Before parting with this case, I must observe that throughout the bearing of this matter, one thing has dominated my mind and that is as to what are the criteria available for a learned Magistrate to order cancella­ tion of a police case or to refuse to do so when he decides to act otherwise as he thinks fit in exercise of his powers under section 173(3) read with section 169 Cr.P.C. on a police report being submitted before him. Nevertheless, the decision of the learned Supreme Court in re : Mir Hassan v. Tariq Saeed and 2 others (P.L.J. 1977 S.C. 91) and a subsequent decision of the same Court in re : SaadShtbll v. The State (P.L.J. 1982 S.C. 27) arising out of cases under section 494 of the Criminal Procedure Code appear to me be apt for guiding the Magistrates in exercising their power of cancellation of police cases. I am alive to the distinction in the effect and the nature of two orders which are permissible for the Magistrates and the trial Courts to pass under (sections 494 and 173 Cr.P.C. It admits of no doubt that an order of acquittal or discharge passed in terms of section 494 Cr.P.C. with the consent of the Court is a judicial order liable to revision by Courts. While in cases coming up under section 173(3) Cr.P.C., an order would not amount to discharge and it will be still open for the police to carry out the investigation to put up a fresh challan or for an aggrieved person to file a private complaint. In the cases aiising under section 494, the superior Courts have laid down certain guidelines and principles. I may advantageously quote from the precedent case of Mir Hassan v. Tarlq Saeed and 2 others and in particular the following enunciation of law made therein :— "Section 494 is an enabling provision, and vests in the public pro secutor the initiative andthe discretion to apply to the Court for its consent to withdraw from the prosecution of any person. What the Court has to determine in such a case, for the purpose of giving con­ sent, is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. The application for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecu­ tion to continue where there is insufficient or meagre evidence to justify a conviction." The discretionary power having been vested in the public prosecutor by the statute, the Court acts, so to say. in a supervisory capacity, to see that the power is not abused in any manner, exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary course of justice. The Court must, therefore, satisfy itself that there do exist on the record grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution " Similarly, in Saad ShiblCs case, the learned Supreme Court had further elaborated the matter in the light of peculiar facts of those cases, A dis­ tinction was drawn between cases involving an individual and originating on a personal note and those based on policy decision, uniformly applied to all sections without discrimination, in a matter of public concern not affecting an individual nor localized territorially. The broad distinctions in the nature of the two jurisdictions notwith­ standing, the criteria laid down by the Supreme Court as would stand attracted to proceedings under section 173(3) read with section 169 of th» Criminal Procedure Code must never be lost sight of by learned Magistrates. 17. On the legal plane therefore, I am clear in my mind that the power conferred on the Magistrates under section 173(3) Cr.P.C. is not an arbitrary power and must proceed on relevant principles akin to those enunciated by the above mentioned decision. However, even if these criteria are taken into consideration in the facts of the present case it would be seen that the complainant who lodged the P.I.R. himself had moved the Superintendent of PolicS that the case was false and he had sworn an affidavit to the same effect before the Investigating Officer that his complaint was false and misconceived. The result of the investigation was also similar and thus request for cancellation of the case made. The order passed by the learned Magistrate could not be said to be atbitrary or contrary to the purpose of law in the face of patent facts and circumstances of the case. 18. I may, however, emphasize that while exercising powers under section 173(3) Cr.P.C., the learned Magistrates are not to act as pawns in the hands of the police and pass mechanical orders without application of their conscious mind to the facts and the material as placed before them notwithstanding the fact that no evidence in the case had been recorded by the Court. The learned Magistrates must be made to realise that the power to cancel a police case is of wide amplitude which as tue effect of bringing to a halt the criminal prosecution which other­ wise would entail a detailed process. Such a power therefore, by its very nature, cannot be designed to be exercised on mere ipse dixit of the police. Otherwise, the very purpose for conferring this power on the Magistrates on responsible level in supervisory capacity would stand defeated. On competently instituted proceedings, other than revision, where it appears clear to the Courts placed at higher pedestal in the hierarchy that there has been an attempt at stifling the prosecution in its infancy in the absence of conscious application of mind or on considerations other than public policy, preventing abuse of process of law, and to secure the ends of justice, or if it is for ulterior purposes, they would not hesitate to interfere in fit cases and compel observance of law. In either case the orders affecting criminal prosecution, whether administrative or judicial in character, must flow from full application of mind of the learned Magistrates to the facts of a given case and the decision must be based on considerations of purpose of law and advancing the interest of justice. 19. The result is that this writ petition is accepted and the impugned! order of the learned Sessions Judge is declared to be without lawful"authority and of no legal effect. There will however be no order as t6 costs, (Aq, By.) Petition accepted.

PLJ 1983 CR396 PLJ 1983 CR396 Present: ijaz nisar, J GUL MUHAMMAD and 3 Others—Petitioners vesrus THE STATE—Respondent Cr. Misc. No. 1710—B of 1983, decided on 3-9-1983. Bail—

Grant of—Bait of petitioners, accused of murder, pressed on sole ground of delay in completion of trial—Period of detention of petitioners coming to more than two years and trial not concluded —Delay in trial not occasioned by act or omission on part of peti­tioners or by any person acting on their behalf—Petitioners, held, entitled to bail as matter of right—Criminal Procedure Code (V of 1898)—S. 497 (1) sub. Cls. (a) and (b). [P. 396] A PLJ 1982 SC. 72 followed. Dr. Khalid Ranjha. Advocate, assisted by Ch. Hantf Khhatana, Advocate for Petitioners. Mr. Rashad Aziz, A. A. G, for the State. Raja Muhammad Anwar, Advocate for the Complainant. Date of hearing 3-9-1983 order The petitioners have been cballancd in a case under Sections 148,302 307, 325/109 and 149 P. P. C (F. I. R. No. 121/80, dated 30-8-1983, P. S. Shakargarh). 2. They alongwith others stand charged with the murder of one Manzoor Ahmad and for causing injuries to Farman Ali and Nazeer Ahmad. 3. Bail is urged on the ground of delay in the completion of the trial. According to the learned counsel, the petitioners were arrested in Septem­ ber, 1980 and are behind the bars since then. 4. It is an admitted fact that the trial has not concluded as yet. Even if the time consumed as a result of the adjournments sought on behalf of the accused on various occasions is excluded, the period of their detention comes to more than two years. It is a settled proposition of law that after the amendment of Section 497 Cr. P. C. if the trial of an accused is not concluded within the specified period as mentioned in sub clauses (a) and (ft) of sub-section (l)of Section 497 Cr. P. C. he is entitled to bail as a matter of right provided the delay in the trial has not been occasioned by an act or omission on his part or any person acting on his behalf. Following the precedent reported as Naztr Hussain v. Zlaul Haq and others (PU 1982 SC627=I983 S C.M.R. 72), I admit the petition­ ers to bail in the sum of Rs. i 5.000/- (Rupees fifteen thousand only) each with two sureties each in the like amount to the satisfaction of the learned Sessions Judge, Sialkot. (Aq. By.) Bail granted.

PLJ 1983 CR397 PLJ 1983 CR397 Present: Z. C. valiani, J ABDUL HAQ—Appellant versus THE STATE—Respondent Cr. Appeal No. 237 of 1976, decided on 20-2-1983. (i) Pakistan Penal Code (XLV of I860)—

S 409 read with Prevention of Corruption Act (II of 1947)—S. 5 (2)—Criminal Branch of Trust—Offence of— Evidence, appreciation of—Appellant, Sub Post Master Incharge of Branch admitting deposit of Rs. 2000/- by PW, 3 in her account — Appellant admitting entry of said amount in pass book stating such amount having been deposit­ ed on 27-12-1971 whereas pass book showing in handwriting of appel­ lant deposit of amount on 2-12-1971 whlie seal of post office against said entry dated 27-12-1971 and not 22-12-1971—Amount, deporited on 2-12-1971 also not shown in S. P. General of said post office by appellant on said date—Prosecution having proved charge in respect of this amount, beyond reasonable doubt, conviction on this account maintained—Sentence reduced to period already undergone—Fine reduced to Rs. 4000/. [P. 400]J8 A D (ii) Pakistan Penal Code (XLV of I860)— ——S. 409—Criminal Breach of Trust—Offence of—Conviction for— Inventory—Evidence of—Statements of pWs. not proving shortage of amount in safe of Post Office beyond reasonable doubt— Mashtr of said inventory declared hostile—Inventory of said safe not established as correct beyond reasonable doubt—Prosecution, held, failed to establish its charge in respect of misappropriation of amount against appellant. [P. 400] A & E Mr. Muhammad Hayat June jo. Advocate for Appellant. Mr. Alt Murtaza Hussain, Advocate for Respondent. Date of hearing: 17-2-1983. judgment The appellant abovcnamcd, being aggrieved by judgment dated 30-8-1976 of the Special Judge (Central) Karachi, in case No. 49/74, whereby appellant has been convicted under section 409 P. P. C. and lection 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to suffer R. I. for one year and to fine of Rs. I 5000/—or in default to suffer further R. I. for 3 years, has preferred the above appeal, on the following facts and grounds :— According to prosecntion, on 2-12-1971, the appellant was Sub Postmas­ ter, Karachi University Post Offfoe, Karachi, in which Mrs. Jilani Haq deposited in her g.B, Account No. B-725 a sum of Rs. 2.000/-, The appellant took this amount with the deposit form duly filled in and made entry of the said amount in her, Pass Book, Appellant returnad the Pass Book to Mrs. Jilani. The entry about deposit of said amount was initialled by the appellant, but it was put date stamp of 22-12-1971. This deposit of Rs. 2000/- was not mentioned in the S. B. Journal or in Sub Office Slip of said post office dated 2-12-71. In this way, said amount of Rs. 2.000/-was allegedly misappropriated by the Appellant to whom it was entrusted in bis capacity as a public servant. It was further alleged that on 28-12-1971, said post office was visited by P. W. Asadullah Baig Ex. 14, Assistant Superinteudent of Post offices, who was accompanied by P. W. Rehan Aziz Ex. 5, Dy. Controller of post offices. P. W. Asadullah inspected the record of said post office on 28-12-1971 when the appellant was missing. |n the Sub Office Slip of 28-12-1971, P. W, Asadullab found figure of Rs. 14395/91 in the opening balance but closing balance of the same was left blank. According to his calculation, the figure in the closing balance should have been Rs. 14680/85. He found that total collection for 28-12-71 was Rs. 1049/86. In this way P.W. Asadullah Baig found shortage of Bs, 13630/99 in said post office on 28-12-71. Subsequently, on 1-1-72 the safe of said post office was opened by the appellant in presence of P. W. Asadullab and other persons. The safe was found to contain cash of Rs. 63/-, certain postage stamps etc, the value of which including the cash was Rs. 2630/02. This amount was deducted from the shortage found on 28-12-71 and net shortage came to Rs. 11,000/97. This amount was alleged­ ly misappropriated by the appellant, who could not account for it. In view of this, P. W. Asadullah relieved the appellant of his duty as inchargc of said post, office on 1-1-1972 and lodged the complaint Ex. 17 with Police, The case was registered by Pakisian Special Police Establishment, who incorporated the contents of the complaint Ex. 17 in F. I. R. Ex. 27. After due investigation, by SP E; the case was transferred to S. H. O. New Town, who submitted challan against the appellant. Under a letter dated 5-11-1974, my learned predecessor moved the Government of Pakistan for sanction to prosecute the appellant. The requisite sanction was neither granted nor refused. Under an order dated 20-1-75 the requisite sanction was taken to have been granted. Substance of allegations Ex. 2 was read over and explained to the appellant, who was called upon to show cause as to why he should not be convicted. The appellant pleaded not gutly and claimed trial. Prosecution examined complainant Asadullah Ex. 14 and P. Ws. Muhammad Alam Ex. 3, Rehan Aziz Ex. 5, Abdul Ghafoor Ex. 13 Mrs. Jilani Ex. 18, Muhammad Afzal Ex. 20, Muhammad Aslain Ex. 21, Jamil Asghar Ex 22, Azizur Rehman Ex. 25 and Rao Muhammad Amin Ex. 26. The prosecution was closed under statement Ex. 30. In his statement Ex. 31, the appellant admitted that he was Sub Postmaster, Incharge to Karachi University Post Office Karachi and as such a public servant during the period from April, 1971. till, December, 1971. He admitted deposit of Rs. 200J/- in the account of Mrs. Jilani but he con­ tended that such deposit was made on 22-12-71 and not on 2-12-1971. He admitted entry in Pass Book of Mrs. Jilani for the deposit of Rs. 2000/- on 2-12-1971, and also admitted his initial on that entry. He contended that said entry was bearing date stamp of 27-12-1971. He denied if said deposit was made on 7-12-1971. He denied misappropriation of Rs. 2000/- by him. In respect of despatch of cash of Rs. 2000/-, deposited by Mrs. Jilani, to the Head Office, the appellant stated that the same was secured by the Inspector before it could be sent to the Head Office. He denied shortage of cash on 27-12-71 and admitted that he was not present in said post office on. 28-12-71. In respect of opening of the safe of said post office in his presence on 1-1-1971, the appellant explained that the same was already lying open and it was not opened by him. He admitted that the safe contained the articles as per Inventory Ex. 4. The appellant denied shortage of Rs. 1,000/97 Paisas in said post office and stated that no transaction took place in said post office on 23-19-71. The appellant did not wish to examine himself in his defence. In his defence, the appellant gave names of four persons, out of whom two were given up while D. Ws. Muhammad Mustafa Khan Ex. 34 and Azizullah Ex. 35 were examined and the defence was closed vide statement Ex. 38. On the date of recording the defence evidence, the Counsel for the appellant moved for an Handwriting Expert to be summoned after he inspected the question and admitted documents. This request, having been made at a late stage, could not be accepted. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as herein before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo of appeal. The learned Advocate for the appellant in support of the above appeal submitted asunder:— (a) That Ex. 14 the alleged Inventory of the safe prepared was not established as correct, as P. W. 1 Muhammad Aslam, the Mashtr of the said Inventory did not support the prosecution and was declared hostile and as such prosecution has failed to prove allege misappropriation of the said amount of Rs. 11,000/- beyond reasonable doubt. (b) That P. W. 5 Mrs. Jilant was not sure about the date of the deposit of Rs. 2000/- by her in the said account and as such the statement of the Appellant u/s. 342 Cr. P. C. that she deposited the said amount on 27-12-71 and not on 2-12-71 ought to have been accepted. : o established its case bypnd reasonable doubt in respect of the sum of Rs. 11000/- Daisappropriated by the appellant, by the statements of the prosecution witnesses and consequently, he supports the impugned judgment. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned Trial Court and the impugned judgment. Prosecution case regarding alleg­ ed breach of Criminal Trust of a sum of Rs. ll.OOO/- rest on the statements of P. W. 1 Muhammad Alam (MashlrYot the Inventory, who was declared hostile, P. W. 2 Rehan Aziz. P. W. 3 Ghafoor Khan, P. W. 4 Asadullah Baig, P. W. 6 Muhammad Afzal, P.W. 7, Muhammad Aslam and P, W. 8 Jamil Akhtar Kayani. I have carefully gone through their statements, and in my opinion their statements do not prove beyond reasonable doubt alleged shortage of Rs. Il.OOO/- in the safe of further more, the Inventory beyond reasonable doubt. As for mis-appropriation of the sum of Rs. 2000/- deposited by P. W, 5 Mrs. Jilani in her account, I find that appellant has admitted entry of the said amount in the Pass Book of the said witness, but stated that the said amount was deposited on 27-12-71, whereas the Pass Book shows in the hand wrisiag of the appsllan , that ihe said amount was de­ posited on 2-12-71.- bui the seal of the Post Office against the said entry is daed 22-12-71, and not 27-12-71, as alleged by the appellant. In the face of appellants own admission, thai the date 7-12-71 in the Pass Book of P.W. 5 is in his hand writing, Prosecution by the statement of P. W. 2 Rehan Aziz has establish ed, that the said amount which was deposited on 2-12-71 was not shown in the S. P. General of the said Post Office Ex 9 and 10, by the appellant on the asid date. In view of this I am of the opinion, prosecu­ tion has established charge in respect of this amount against the appellan t, beyond reasonnable doubt, as I find that assertions made by P, W. 2 Rehan Aziz were not challenged in his Corss Examination by the appellant. Therefore, n view of my above conclusions, in my opinion, prosecution. CJbas failed to establ sh its charge in respect of mis-appropriation of Rs. 11000/- Jagainst the appellant. However, the charge of mis-appropriation in respect Rs. 2000/- deposited by the P. W. 5 Mrs. Jilani in her account on 2-12-71 has been established by her statement as well as by the statement of P. W. 2 Rehan Aziz, beyond reasonable doubt. Therefore, while dismissing the above appeal in respect of the said amount of Rs. 2000/- deposited by P. W. 5 Mrs. Jilani, I maintained the conviction of the appelient only on this account and consequently reduced the sentence of imprisonment awarded to him from ! year, to period already under gone by him and also reduce the fine imposed on the appellant from Rs. 15000/- to Rs. 4000/- and in default of payment of said fine to suffer R. I. for 1 year. However, 1 allow 3 weeks time to the appellant to pay the said fine, failing which the learned trial Court is directed to issue Non Bailable warrants for the arrest of the appellant and on his arrest to remand him to judicial custody to serve out sentence awarded to him in lieu of fine, by this judgment. The above appeal stand dismissed in the terms of the above order. (Aq. By.) Appeal dismissed

PLJ 1983CR401 PLJ 1983CR401 Present : Z C. valiani, J IKRAMUDDIN and Another—Appellants versus THE STATE-Respondent Cr, Appeal No. 105 of 1978, decided on 10-4-1983. (i) Prevention of Corruption Act (II of 1947)— S. 5 (2)—read with Pakistan Penal Code (XLV of I860)—S. 161 — —Illegal gratification—Acceptance of—Offence of—Evidence, apprai­ sal of—Benefit of doubt.—P.Ws., not witnessing passing on of tainted amount to accused—Motive for illegal gratification unreliable —Complainant's statement as to demand of illegal gratification made by accused, disbelieved—Confessional statement of co-accu­ sed as to receipt of alleged tainted money from accused/appellant No. 1 for releasing amount of cotton pods appearing to be plau­ sible—Statement of D W not shaken in cross examination—Prosecu­ tion, held, failed to establish its case against appellants beyond reasonable doubt—Conviction and sentences, set aside—Appellants acquitted. [P. 405] B&C (ii) Criminal Trial—

Witness—Testimony of—Corroboration—Requirement of trial court not believing statement of witness in respect of alleged demand of illegal gratification made by appellant— Held: Statement of such witness in respect of his having given tainted money to appellant not to be relied upon without independent corroboration in circums­ tances of case. [P. 404] A Mr. A. Q. Halepota, Advocate for Appellant. Date of hearing : 4-4-1983 judgment Appellants abovenamed, being aggrieved by judgment dated 30th April, 1978, by which appellant No. 1 has been convicted u/s. 161 P PC and u/s. 5 (2) of Act II of 1947 and sentenced to suffer R.f. for three months and to pay fine of Rs. 500/- or in default to suffer further R.I for two months and appellant No. 2 has been convicted u/s. 161 PPC read with Section 109 P P C and sentenced to suffer R.I- for ihree months, have preferred to above appeal, on the following facts and grounds :- According to prosecution, appellant Ikramuddin was Manager, Hutab Cotton Ginning Pressing Factory, New Saeedabad, Taluka Hala. Appellants Shamsbad was also employee of said factory, but was working as a cook of appellant Ikramuddin. Complainant Haji Muhau.mad Aslam, an agriculturist of New Saeedabad, had supplied 1500 mounds of Cotton pods in his own account and 600 Mounds of cotton pods in accuount of his father Haji Mohammad Hashim to Appel­ lant Ikramuddin, by way of sate at raie of Rs. 125/- per mounds of cotton pods. Out of the amount of Rs. 1,87,500/- which the complainant was to get from said factory and price of 1500 mounds of cotton pods, he was paid Rs. 1.62.00/- only by appellant Ikramuddin as Manager of said factory. Complainant was to get Rs, 25.000/- as balance of payment in his own account and amount of Rs. 75,000/- in account of his father from appellant Ikramuddin. For releasing said amount to the complainant, the appellant demanded from him illegal gratification amounting to Rs. 2100/- at the rate of rupee one per maund, as alleged. Complainant lodged such complaint wiih the F I R on 5-11-1976. In the FIR, he added that appellant Ikramuddin had asked him to pay him Rs. 2000/- as bribe 6-11-1976 at said factory. Police organized a trap on 6-11-1976 after registering the case on 5-11-1976. In presence of a Magistrate and two mashlrs tainted currency notes of the value of Rs 2000/- were given to the complainant for paying the same to appellant Ikramuddin. The raiding party went to said factory at 11 A.M. same day, when complainant passed on tainted currency notes to appellant Ikramuddin, who received the same and passed on the same to his cook, co-accused Shamshad. This was witnessed by the magistrate and the mashirs. Police recovered the tainted amount from person of co-accused Shamshad, arrested both the appellent and prepftred such mashirnamas. Uuder a letter Ex. 1 dated 22-2-1977, trial court moved the Govern­ ment of Pakistan for sanction. Said letter was acknowledged by the Ministry of Interior under their letter dated 6-5-1977. Requisite sanction was neither accorded nor refused and the same was deemed to have been accorded, after expiry of statutory period and such order was passed on 6-11-1977. Charge Ex. 3 containsng prosecution allegations was read over and explained to the appellant, who pleaded not guilty. Prosecution examined complainant Haji Muhammad Aslam Ex. 4 and P. Ws Ghulam Mohammad Ex. 6. Karamullah Ex. 10 and Mushtaq Ahmad Ex. 13 and prosecution was closed under statement Ex. 16. In his statement Ex.17, appellant Ikramuddin admitted, that during the month of November, 1976, he was Manager, Hutab Cotton Ginning & Pressing Factory, New Saeedabad and was as such a public servant. He admitted that during the cotton season 1976-77, complainant Hubammad Aslam had supplied to said Factory 15th mounds of cotton pods in his account and such entries were made at page (2) (photo copy Ex 15 of Register of Supply of phuties and payment thereof, maintained in said factory. Appellant Ikramuddin denied if complainant also supplied 600 mounds of cotton pods in account of his father during said season. Ikramuddin mantained that it was Haji Hashim, father of os the complainant, who had supplied to said factory during said season 402 maunds and 23 seers of cotton pods. Rest of the allegations about demand of Rs. 2100/- and about acceptance of Rs 2000/- as illegal gratification were denied. It was also denied if appellant Ikramuddin had been charging illegal gratification at the rate of Rs. I/- for each maund of cotton pod supplied to said factory /through him. Appellant Ikramuddin alleged enmity with the complainant and contended that the witnesses were henchmen, of the complainant. Accused Ikramuddin concluded his statement by saying thai on 4-11-1977, the complainant demanded from Accountant Nazir Ahmad sale proceeds of the cotton pods supplied by the complainant iti his own account and in account of his father. That Nazir told the complainant, that there was no cash in the factory and that after 2/3 days, the payment would be made. Accused Ikramuddin added that the complainant was brought to him by accountant Nazir. That he told the complainant that the cash permitted to be kept in the factory was over and that amount payable to father of the complainant, as sale proceed of the cotton pods supplied, could not be paid to the comp­ lainant. Accused Ikramuddin alleged that the complainant rebuked him, threatened him and challenged him of securing the money by force. In respect of the happening, of 6-11-1976, accused Ikramuddin stated, that on said date at 9. 30 a. m. he was in his office with his accountant, when 4/5 persons came accompanied by the complainant, and they took him away after arresting him. Accused Ikramaddin did not wish to be examined in his own defence. Accused Shamshad, in his statement Ex. 10, admitted that in November, 1976 he was an employee of said factory and was as such a public servant. He denied that on 6-11-1976 as lla.m., he took from co-accused Ikramuddin tainted money of Rs. 2000 allegedly received by the co-accused as illegal gratification from the complainant for releasing the amount of cotton pods. Accused Shamshad alleged, that the witnesses had deposed against him due to enmity with co-accused Ikramuddin. Accused Shamshad added that on 6-11-1976 at 9. 30 a.m., complainant gave him some currency notes for safe custody and that he took those notes intrust. That after 15 minutes, the complainant returned and demanded back the money, which he had kept in trust. Accused Shamshad added that in the meantime. F I A people came and they [caught him and secured the money from him, The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants abovenamed as herein­ before mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the Memo of Appeal. The learned advocate for the appellants in support of the above appeal submitted as under :- (a) That learned trial court did not accept the assertion of the comp­ lainant that appellant No. 1 demanded from his illcgol gratification and as such no reliance can be placed on the statement of comp­ lainant that be gave tainted money to appellant No. 1, who passed on the same 10 appellant No. 2, without independent corroboration, which is not at all available in present case. (b) That learned trial court wro gly discarded the evidence of coaccused 2 and his judicial confession and rejected the same on the grounds not at all warranted by law, (c) That statements of P. W 2 Ghulam Mohammad the learned Magistrate creates doubt about the veracity of the statement of P W 3 Karamatullah, the masMr of trap and P W 4 Mushtaq Ahmad, I. O, and complainant P W Haji Mohammad Aslam regarding prosecution case, that appellant No. I received the tainted money and passed on the same to appellant No. 2 in view of the evidence of appellant No. 2 and his judicial confession and as such prosecution has also failed to establish its case for receiving illegal gratification against both the appellants, beyond reasonable doubt. The learned advocate for the State, at the outset submitted, that he was not supporting the impugned judgment, as motive for illegal gratifica­ tion is absured and false and no reliance can be placed on the statement of P W 3 Karamatullah, P W 4 Mushtaq Ahmad and complainant, in view of the statement of P W 2 Ghulam Muhammad, that P W Mushtaq Ahmed first caught hold of appellent No. 1 and called upon him to take out money, on which appellant No. 1 said he had no money and there­after he searched the person of appellant No. 2 and recovered tainted money, as this shows, that neither P. W 4 Mushtaq Ahmed (I O.) nor P W 3 Karamatullah mashlr could have witnessed the passing of tainted money between complainant and appellant No. 1 otherwise, PW4 Mushtaq Ahmed (I. O.) would not have caught bold of appellant No. 1 first and asked him to take out tainted money, if actually be had witnessed the incident as alleged by him. In support of his contentions, the learned advocate for the State relied upon case reported in 1970 Pak Cr, L J 1011, 1973 Pak Cr. L J 1036, 1975 Pak. Cr. LJ 286 and 1976 Pak. Cr. L J 273. I have carefully considered the above submissions made by the learned advocates before me and have gone through the R&P of the learned , trial court and impugned judgment and cases cited by the learned advo­ cate for the State. P. W. Haji Mohammad Aslam's statement, which was not believed by the learned trial Court in respect of alleged demand of illegal grati­ fication made by appellant No. 1 cannot be relied upon in respec of bis statement for having given the tainted money by way of illegal gratification to appellant Nol.as alleged in his said statement, without independent corroboration, in my opinion, in view of the evidence and udicial confession of the appellant No. 2, which is on record. For such corroboration, the learned trial Court relied upon the statement of P W 2 Ghulam Mohammad (Magistrate) P W Karamatullah (mashir of trap) and P W 4 Mushtaq Ahmad (I. O.) after discarding evidence of appel­ lant No. 2 and his judicial confession. In view of this, 1 have carefully gone through the statements of these P Ws. P W 2 Ghulam Mohammad in his statement before the learned trial court stated as under :— "After talk was over, complainant Aslam handed over the money to accused Ikram (appellant No: 1). In the meantime, Cashier of accused Ikram also came there. Accused Ikram passed on the money received by him from the complainant to his cashier we saw all this. We then came forwed, Inspector Abdul Ghafoor caught accused Ikram first. Abbul Ghafoor asked Ikram. but he said that he had no money. Thereafter, Inspector Abdul Ghafoor searched the person of of Cashier Ikram (le. appellant No. 5) and secured tainted money from his person." If she above statement of P W 2 Ghulam Muhammad was true and correct, then one cannot understand, why PW4 Mushtaq Ahmed first caught hold of appellant No. I, and asked him to produce tainted money, when all P. Ws, it is alleged had seen appellant No. 1 passing on the said. tainted money to appellant No. 2 forthwith, in their alleged presence. It may be noted, that the name of Inspector was Mushtaq and not Abdul Ghafoor as mentioned by P W 2 Ghulam Mohammad, in his siaternent before the learned trial court. However in the face of above mentioned statement, is examination-in-chief by P W 2 Ghulam Mohammad, no reliance can be placed on the statements of P Ws I, 3, & 4 without inde­ pendent corroborations, in my opinion in the face of the statement on oath ofappellent No 2 before the learned trial court, which is straight forward and convicting and was not shaken in his cross examination, at all has been further corroborated by D W 3 Nazir Ahmad. It may be further noted that, talks between appellant No. 1 and P W 1 Mohammad A si am complainant was not heard by P Ws 2, 3 and 4 at all. In addition to above facts on record, I find rejection of appellant No. 2 judicial confession on the grounds mentioned in impugned judg­ ment not at all justified, as appellant No. 2, in his statement on oath before the learned trial Court, did no t resile from his said judicial confession, but on the contrary admitted the same to be true. Keeping in view my appraisal of the statements of P Ws and D W 3 Nazir Ahmed, which was not shaken in his cross examination and the statement of appellant No. 2, on oath and his judicial confession Ex.20, in my opinion, prosecution has failed to establish its case beyond reasonable doubt, against both the appellants im my opinion, as rightly conceded by the State counsel. Therefore I allow the above appeal and set aside convictions of the appellants and sentences awarded to them and acquit both of them, by giving them benefit of doubt and discharge the bail bonds executed by them, in above appeal. (Aq. By.) Appeal allowed.

PLJ 1983 CR405 PLJ 1983 CR405 Present: javid iqbal, C.J. GHULAM SHABBIR—Appellant versus THE STATE—Respondent Criminal Appeal. No, 580 of 1982, decided an 12-6-1983. (i) Pakistan Penal Code. (XLV of I860)—

S. 302—Murder—Offence of—Conviction—Evidence, appraisal of— Occurrence taking place during daytime in crowded place near bus-stand—Ocular evidence by interested and inimical witnesses consistently attributing injury on person of deceased by fire shot by appellant from very close distance — Previous enmity existing between parties—Dying declaration made by deceased soon after occurrence, mentioning name of appellant in spite of enmily with other persons also—Dying declaration found genuine and true, receiving support or corroboration from Medical evidence as well as circumstantial evidence — Ocular testimony also corroborating dying declaration — Prosecution, held, succeeded in establishing its case beyond any shadow of doubt—Conviction, and sentence maintained in circumstances—Appeal dismissed. [P. 4\5]A,C.D,G,H, &J ,• P L J 1978 Cr. C. (Lahore) 534; 1976 P. Cr. LJ 1127 distinguished. PLJ 1981 SC96;PLJ 1981 SC 376;PLJ 1977 SC 481 ; PLJ 1977 SC 412 d !97£ SCMR 471 ref. (ii) Dying declaration—

Acceptance of — Corroboration— Requirement of— Held : Dying statement if eventually to be accepted as genuine, there may not be need for consideration of ocular testimony as corroborative (Evidence Act (I of 1872) S. 32]. PLJ 1977 SC 481 ref. (iii) Dying declaration—

Genuineness of— Held: Dying declaration if corroborated or supported by important pieces of circumstantial evidence to be genuine—Evidence Act (I of 1872)—S. 32. [P. 416]£> (iv) Dying declaration— ——Genuine declaration—Corroborations—Requirement of— Held: In case of true and genuine dying declaration, no further corroboration to be required—Evidence Act (1 of 1872)—S. 32 [P. 416]£ PLJ 1977 SC 481 rel. (v) Dying declaration—

Tutored declaration — Presence of relations—Effect of— Held: From mere presence of relatives of deceased at time of recording of dying declaration, ignorance of such statement having been tutored not to be drawn—Evidence Act ([ of 1872)—S. 32. [P. 416JF Mr. M.B. Zaman. Advocate for Appellant. Kh. Shoukat All, Advocate, Mr. Ijtu Hussaln Batalvt Mr. M.A. Zafar, Advocates for Respondent. Dates of hearing: 24/25-5-1983 and 5/6/7/8/12-6-1983. judgment Ghulam Shabbir, son of MuzarTar Khan, aged 32 years, armed with pistol, has been convicted under Section 302 P.P.C. for the murder of Sher Baz aged about 40 years, and vide judgment of the Sessions Judge Khushab dated l-l 1-1982, he has been sentenced to life imprisonment plus fine of Rs. 20,000 or in default to undergo two years rigorous imprisonment with the direction that if the fine was realised from him, Rs. 16,000 out of the same should be paid as compensation to the heirs of the deceased The appeal of ihe convict is being taken up along with Criminal Revision No. 769 of 1982, for enhancement of the sentence awarded to the convict from life imprisonment to death and these are being disposed of together by this judgment. 2. The occurrence took place on 8-5-1980 at I p.m. near Bus-stand Khushab at a distance of one furlong from Police-Station Khushab, then District Sargodha. Statement (Ex. P.C.) of Sher Baz deceased, while he was still alive, was recorded ai the hospital on the same day at 2 p.m. 'by Muhammad Salim Khan Niazi S.I. (P.W. 12) who arrived at the hospital on receiving message from the Medical Officer. On the basis of the aforesaid statement formal F.I.R. (Ex. P.C./l) was registered at the police station on the same day at 2.15 pm. by Nazar Muhammad M.H.C. <P.W. 4). Initially, a case was registered under Section 307 P.P.C. against the appellant but on the death of the deceased five days thereafter i.e. on 13-5-1980 it was converted to Section 302 P.P.C. 3. The motive for crime as stated in the F.T.R. is that 15/16 years before the present occurrence, Muhammad Sbafi and one Sher Baz, % son of Bahawal, related to the appellant, were both murdered and in that murder case the deceased and some of his relatives, namely, Muhammad Feroze (P.W. 7) and Muhammad Khan (P.W. 8), eyewitnesses, were challaned. It is stated that it was in order to avenge the murders of his relatives that the appellant had murdered the deceased. Learned counsel points out that it will be borne out from the record that there is otherwise also a long-standing enmity between the parties. The trial Court has relied upon the motive version. 4. In the F.I.R. the occurrence is reported to have taken place in the following manner: On the fateful day when Sher Baz deceased was near the Bus-stand Khushab, being followed by two eye-witnesses of the occurrence, namely, Muhammad Feroz (P.W. 7) and Muhammad Khan .(P.W. 8), tbe appellant suddenly emerged armed with a pistol from behind the trucks standing there and raised a lalkara at the deceased. Just as the deceased had tamed to look at who had raised the lalkara, the appel­ lant is said to have fired a shot through his pistol which hit tbe deceased at tbe back of his chest. On the receipt of the said injury, the deceased fell down on the ground in an injured condition. The eye-witnesses of the occurrence namely, Muhammad Feroze and Muhammad Khan P. Ws. tried to apprehend the appellant but the appellant managed to escape, fle was thereafter removed to the hospital and with the permission of the Medical Officer the statement of the deceased, while he was still alive, was recorded by the Investigating Officer. On the death of the deceased five days after the occurrence, the statement of the deceased five days after the occurrence, the statement of the deceased has been treated as a dying declaration. 5. In the light of the dying declaration of the deceased the prosecu­ tion has produced two eye-witnesses of the occurrence, namely, Muhammad ^ Feroze (P.W. 7), who is first-cousin of the deceased, and Muhammad Khan <P.W, 8) who is related to the deceased in the sense that the wife of tbe deceased is niece of this witness. Tbe trial Court has relied upop tbe ocular testimony in the instant case as well as the dying declaration of tbe .deceased. 6. The appellant was arrested on 4-7-1980 i.e. after about two months .of the occurrence by Muhammad Salim Khan Niazt S.I. (P.W. 12). No explanation is forthcoming from the record as to why the appellant was arrested two months after the occurrence. Be that as it may, no crime empty was picked up from the spot but tbe prosecution version is that tbe appellant led to the recovery of pistol (Ex. P. 6) along with a crime empty lying within its chamber (Ex. P. 7) which- was taken into possession vWe Memo, Ex. P.O. on. 14-7-1980. The appellant is stated to have dug out the said pistol from the ground. The Memo, is attested by Ghulam Jilani P.W- 9), who according to learned counsel, was also one of the accused in murder case of Muhammad Shafi and Sher Baz son of Bahawal, Muhammad Amir (not produced) and Muhammad Salim Khan Niazi S.I. (P.W. 12). But it may be pointed out at this stage thai the said pistol was not sent to the Fire-arms Expert for examination. Consequently, the recovery in the instant case is not of any consequence. The prosecution case mainly rests on the dying declaration of the deceased, corroborated by the ocular evidence, which is further supported by the motive version and the medical evidence. 7, The appellant in his statement before the trial Court completely denied having participated in the occurrence. He disowned the recovery and stated that he had been falsely implicated due to long-standing enmity between the parties. It was also stated by him that the deceased bad many other enemies and that at the time when he was shot, be told the people who had surrounded him that he could not identify his assailant. The appellant first took the position that he will, produce witnesses in his defence but subsequently withdrew from doing so and gave them up. Thus, he pleaded innocence but did not produce any witnesses in his defence. However, learned counsel submits that he placed on record a complaint filed by Muhammad Khan (P.W, 8), «n eye-witness of the occurrence and a relative of the deceased, to the effect that the assailant of the deceased could not be identified by anyone but that the relatives of the deceased were putting pressure on him to depose in order to support the prosecution version in this case against the appellant. It is stated that this complaint filed before the Magistrate on 17-8-1982 bore the thumb impression of this Muhammad Khan (P.W. 8). He also made a statement in support of the said criminal complaint which was recorded by the Magistrate on the same day and that also bears his thumb impression. Learned counsel further submits that the thumb impressions of both the eye-witnesses in this case, namely. Muhammad Feroze and Muhammad Khan P. Ws. Were taken by the trial Court under its orders and were sent for examination. The report of the Finger Print Expert is on the record produced by the appellant and according to learned counsel, it is positive in the sense that the aforesaid complaint had been filed by Muhammad Khan P.W. on which his preliminary statement was recorded. In other words, according to the Expert, the thumb marks on both the preliminary statement and the complaint were of Muhammad Khan P.W. But it may be noted that these documents were not exhibited on the file, although they have been ordered to be placed on the record by the trial Court vide its ordered dated 30-10-198?. 8. Dr. Muhammad Riaz Ali (P.W. 11) medically examined the deceased, while be was still alive, at 2-15 pm. on 8-5-1980 when he was brought by the police to him. He found on his person a lacerated wound on the back of the chest. The area around the wound was burnt and he further found four lacerated wounds on the right side of the from chest. Margins of them were averted. These injuries were caused with fire-ajm and were dangerous to life. Both the injuries were the result of entrance and the second injury was the wound of exit. He gave his opinion on the query of the police that the injured person was fit to make a statement. Thereafter the police recorded the statement of the deceased, while he was still alive, and this Medical Officer gave certificate to the effect that the injured person remained in senses throughout the period his statement was recorded., The deceased died on 13-5-1980 at 5 a.m. The post-mortem examina­ tion on the dead body of the deceased was conducted by Dr. Malik Muhammad Khan (P.W. 10) on 13-5-1980 who noted the same injuries on his person except that the number of wounds had been increased due to surgical interference and the wounds were stitched. In his opinion ihe cause of death was haemorrhage and shock as a result of the injuries caused by fire-arm. Time between injuries and death was about five days and between death and post-mortem examination about nine hours. 9. I have beard learned counsel for the parties and carefully perused the record. Learned counsel for the appellant first submitted that the investigation had been conducted in a dishonest manner in the instant case. On this point he referred to the statement of Muhammad Saiim Khan Niazi S.I. (P.W. 12) in which he had stated that on 8-5-1980 on the information sent by the doctor he reached the hospital at Khusbab. But in the cross-examination he admitted that there was no ruqqa in the form of information received by him on the record on the basis of which he reached the hospital in the beginning. He also stated that it was incorrect to suggest that he removed the deceased in an injured condition from the spot to the hospital. Learned counsel submits that according to the statement of the Medical Officer who medically examined the deceased, while he was still alive, the patient had been brought by the police to" the hospital and by this witness himself. The doctor does i.ot mention the presence of the eye-witnesses at that time. Learned counsel next submitted on this point that this witness had stated in the cross-examination that it was correct that there was a dispute as to the identity of the assailant between the deceased and his relatives at the time of the recording of dying statement and that such a thing was very common in such a situation. The argument of learned counsel is that if it could be deemed as a con­ cession made by the Investigating Officer in favour of the accused party, then he should not be relied upon for having recorded the dying statement correctly. If it was not to be considered as a concession, even then the statement affected the reliability and questioned the honesty of this witness. It was also pointed out that the recovery evidence produced by this witness was being supported by again an enemy of the appellant and that, therefore, that evidence, although not considered reliable in the instant case, was faked. It is further pointed out that .12 bore pistol had been allegedly recovered at the instance of the appellant, whereas according to the medical evidence a bullet had been recovered from the dead-body of the deceased. It was next argued that the deceased as well as the two eye-witnesses produced by the prosecution, in the instant case, were admittedly inimical towards the appellant and that they were partisan as well as interested witnesses including the deceased himself. Admittedly there was a long-standing enmity between the parties and there was sufficient evidence on the record in the form of the statements of the eye-witnesses themselves as to the nature of this long-standing enmity between them and the appellant. The basis of this argument is that the deceased himself being an interested person, had falsely named the appellant in this so-called dying declaration even though he might have not been able to identify the reai assailant and that since the dying statement was tainted, it could not be corroborated by ocular testimony of interested witnesses which was also tainted. The reasoning of learned counsel is that the eye-witnesses were not present at the time of the occurrence and in this respect he states that their assertion to the effect that they took the deceased in an injured condition to the hospital, was not being supported by the Medical Officer. So, according to learned counsel, the eye-witnesses are put-up witnesses and they had come forward to depose as against the appellant only because they happened to be inimical towards him. Learned counsel also pointed out that both these witnesses had thumb-marked the complaint as well as the statements which were recorded by the Magistrate and even if that evidence is discarded or ignored, the fact would remain that they were not reliable witnesses. Learned counsel vehemently argued that the dying declaration, in the instant case, was a suspicious piece of evidence for numerous reasons. It was argued that admittedly the relatives of the deceased were present at the time when his statement was recorded and that the mere feet of their presence would raise a presumption that the possibility of the dying statement being tutored could not be ruled out. It was also submitted that according to the Investigating Officer who recorded the so-called dying statement, there was a dispute,.regarding the identity of the assailant at the time of the recording of statement and this dispute arose on ibe issue between the relatives of the deceased and the deceased himself while he was still alive. Another argument which has been advanced about the unreliability of the dying statement was that the deceased died after five days and that there was sufficient time for his statement to be recorded by the Magistrate as he remained in his senses. In support of his arguments, particularly with regard to the possibility of tutoring being not excluded by the mere presence of the eye-witnesses or relatives of a patient, learned counsel relied upon Muhammad Lotif & another v. Muhammad Husain and others (PLD 1970 SC 406), Alt Akhtar Husain v. The State (1972 S.C.M.R. 40), Khan Zaman v. Kachkol etc. (1972 SCMR 574), Sher Bahadur v. The State (1972 SCMR 651), Muhammad Abdullah v. Muhnmmad Safdar Khan (.1973 SCMR 26), Wahiduddin v. Allah Ditta (1977 SCMR 72), Zarif Khan v. State (PU 1977 SC 481), Muhammad Yasin v. The State (1978 SCMR 303) and Alt Asghar v. The State (PLD 1968 Peshawar 47). It was submitted that in some of these citations, particularly Zarif Khan v. State (PLJ 1977 SC 481), Muhammad Yasin v. The State (1978 SCMR 303) and Alt Akthar Husain v. The State (1972 SCMR 40), the accused was a single accuced named in a false dying declaration being supported or corroborated by tainted ocular testimony. The crux of the arguments of learned counsel for the appallant is that when the deceased himself was an interested party, the eye-witnesses produced were partisans and interested, the investigation had been conducted in a dishonest manner, then the possibility could act be ruled out that the deceased bad been attacked by an assailom who could not be identified a; the time of the commission of crime but since there was background of long-standing enmity between the appellant and the complainant side, the appellant was named as the single assailant of the deceased. It was pointed out that there was ample evidence on the record to show that there were many othpr enemies of the deceased as well who could have done the job. In the light of this reasoning it was submitted that in the circumstances, the case of the prosecution was doubtful and that the appellant should have been granted the benefit of doubt. Now I proceed to record the arguments of Mr. Ijaz Husain Batalvi, Advocate for the complainant side. He submitted thai the case of the prosecution is based on the following main points :— (0 Dying declaration of the deceased which was recorded soon after the occurrence. (It) Dying declaration being corroborated by the ocular testimony of two eye-witnesses alleged to be interested and partisan. (Hi) Dying declaration being further corroborated or supported by circumstantial evidence in respect of (a) the actual time of occurrence (i p.m.). (6) place of occurrence near bus-stand Khushab, (c) chances of the deceased having seen his assailant, 'id) closeness of the distance between the assailant and the victim at the time of firing of the shot (because according to the medical evidence the wound of entry had burnt the surrounding skin which indicated that the distance could not have been more than 4 feet), and {e) number of the accused persons named by the deceased in the dying statement. (In the present case only one accused person was named). Thereafter learned counsel took me through the three cases which had involved a single accused person and which had been cited by Mr. M. B. Zaman Advocate, learned counsel for the appellam, in support of his arguments. These are the cases in which a single accused person had been named in the dying declaration and the dying declaration had not been considered reliable. Mr. Ijaz Hussain Batalvi Advocate pointed out that in Zarif Khan v. State (P. L. J. 1977 S. C. 481) the Supreme Court while commenting as to whether the dying declaration is to be considered as a weaker type of evidence, has observed that it stood on the same footing as any other piece of evidence and had to be judged in the light of surrounding circumstances and with reference to the principles governing the appreciation of evidence in criminal cases, and that it could not be laid down as an absolute rule of law, nor even of prudence, that a dying declaration could not form the sole basis of conviction unless it is corrobo­ rated. Each case was to be determined on its own facts"keeping in view the circumstances in which the dying declaration was made so that the Court was satisfied that the same was true and genuine. If the Court came to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identify of the assailants, there would be no need for further corroboration But if it appeared to be reliable -by itself or suffered from some infirmity, then it could not from basis of conviction without corroboration. Then he took up All Akhtar Hussain v. The State (1972 S. C. M. R. 40). In that case the dying declaration was based on a statement made by the deceased and recorded by the police in which there was mention of two stock police witnesses and these witnesses had been disbelieved by the Court. In that case the dying declaration was held defective. Learned counsel pointed out that the circumstances of the present case were distinguish­ able. Thereafter betook up Muhammad Yastn v The State (1978 S. C. M. R. 303). fn that case major portion of the dying decjaration was found false and, therefore, it was held that it was not safe to base conviction on the sole dying declaration because it could not be accepted so far as the reminder was concerned. This dying declartion was recorded during the presence of the deceased's relatives and since major portion of the same wai found false, it was held tliat it did not exclude the Possibility of the deceased having been tutored. Learned counsel submitted that this judgment was also distinguishable. In short his argument on this point was that all the three authorities on which reliance was placed by the other side involving a single accused person being mentioned as the assailant in the dying declaration, were not in conformity with the facts of the present case and the principles laid down therein were not applicable so far as the present case was concerned. In support of his arguments learned counsel relied on Niamat All v. The State (P L ) 1 981 S C 96). This was also a case of dying declaration and there was nothing to suggest that the deceased would have substituted an innocent person for real culprit. The statement of the deceased was recorded in the form of F. I. R. and it was held that it was rightly treated as dying declaration and a very strong piece of evidence against the appellant. In that case it was further held that no further corroboration through any independent source was necessary. Reliance was also placed on Waheed Khan v. The State (P L J 1981 SC 376). In that case the identity of the accused was established and the dying statement was found genuine and true and corroborated by the medical evidence as well as evidence of the eye wit. nesses. The conviction and sentences were upheld. Learned counsel read before me the following portion of the judgment :— "As to the identity of the culprit, the dying statement of the deceas­ ed Abdul Waheed is quite clear, as he knew the accused, and be was attacked from close quarters, so as to rule out any question of mistaken identity. Both the Courts below have accepted the dying statement as being genuine and true, and nothing has been said at the Bar before us to cast any doubt on this finding of the Courts below. As observed recently by this Court in Zarif Khan v. The State (P.L.J. 1977 S.C. 481) a conviction can safely be based on the dying statement alone, if the Court is satisfied as to its genuineness and truth. In the present case both these requirements are amply met by the statement made by the deceased at the police station promptly after the incident. Accordingly, even if no further corro­ boration was available, the petitioner's conviction could be sustained." Learned counsel next advanaed his arguments as to whether the eye­ witnesses in the instant case should or should not be believed because they had been stated to be partisan and interested. Learned counsel did not discuss the aspect that the witnesses were not partisan or inte­ rested. His reasoning was that even if they are occepted as such, i. e. interested had partisan, even then in the circumstances of the present case, they should be believed. In support of his argument on this point he took me through Sharif v. The State (1973 S.C.M.R. 83). In that case the eye-witnesses were interested and par­ tisan and it was held that corroboration may be afforded by any thing in circumstances of the case which tendered to satisfy the mind of the Court of thewitnesses having spoken the truth. Reliance was also placed on fazal Muhammad v. The State (1973 S, C. M. R. 432). In that case the inci­ dent had taken place during day time and in an open place. The eye-wit­ nesses were related to the deceased. Their evidence was corroborated by the recovery of blood-stained earth from the place opposite to the accused's house, the medical evidence gave support to the prosecution version and the evidence in the circumstances was held to be rightly believed by the Supreme Court, Reliance was also placed on Roshan v State (P. L. J. 1977 S. C. 412). In that case there were also interested witnesses named and it was held that there was no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. It was held that it depended on the facts of each case and instances were not wanting when this Court had upheld the conviction of the accused based entirely on the testimony of interested witnesses. Reliance was also placed on Wazir Gul v. The State (1976 S. C. M. R. 471). In that case it was held that dying declaration need not be made under immediate apprehension of death. Last incriminating statement of the deceased, such as in F. I. R., it was held, could be legitimately treated as dying declaration. In that case the statement of the deceased, while still alive, was recorded in the form of F I. R. but on his death was treated as dying declaration which was supported by medical evidence and absconsion of the accused and it was held that this was sufficient to bring home the guilt of the accused. In the light of these authorities ledraed counsel argued that this Court has only to satisfy itself that firstly the dying declaration was truthful and genuine and that if the Court was to arrive at the conclusion that it was so, then the con­ viction and sentence can be sustained without any further corroboration. If such corroboration is necessary and it was coming-fprth from such eye­ witnesses, who were stated to be interested and partisan, then in order to satisfy itself the Court must proceed to find or seek corroboration by the facts and circumstances. The reasoning of learned counsel mainly pro­ ceeds on the facts peculiar to the present case. The dying declaration was recorded by the police in the form of F. I. R. soon after the occur­ rence, although the deceased may have died five days thereafter. The occurrence had taken place at 1 p. m. near a bus-stand which was a public and crowded place. It was the month of May. The medical evidence indicated that the shot bad been fired at the deceased from a very close range, and consequently then was a chance for the deceased to see his assailant whom he had already known. Furthermore, even if be had other enemies, he did not name a bundle of them but only mentioned ibe the appellant as the single accused person and as his assailant. Thus, according to learned counsel, the dying declaration was being corroborated by the circumstantial evidence in the instant case. He further pointed out that it was riot a case in which the major portion of the dying decla­ ration had been disbelieved as it had been held in Muhammad Yasin v. The State (1978 S. C. M. R. 303) in which the dying declaration had been disbelieved and the finding of the Court was 10 the effect that the possibi­lities could not be ruled out that due to the presence of the relation of the deceased around him it was a tutored statement. Learned counsel sub­ mitted that in the present case no such situation arises and, therefore, even if the relations of the deceased were present at the time of the making of the dying statement, it would be safe to rely on the same. Leerned counsel further submitted that it was made in the presence of the doctor and the deceased as patient was in a fit condition to make the same. Furthermore, the doctor did not hear of any dispute between the relatives and the deceased about the identify of the assailant. Learned counsel then submitted that since the dying declaration was genuine and truthful was being corroborated by the circumstances, no further corroration was necessary. But if this Court for its further satisfaction looks for such corroboration, then even the testimony of interested and partisan witnesses, like the two eye-witnesses produced in the present case, should be believed if it is being supported by the circumstantial evidence. In the end, learned counsel argued that in the circumstances of the case, the appellant had been rightly convicted under section 302 P. P. C. and this conviction should be maintained. He further pointed out that the reasons given by the trial Court for imposing lesser penalty were not cogent, for. he had observed that the appellant was a young man of 32 years, he did not repeat the pistol shot and that he was also described "as being an old case of Pulmonary Tuberculosis with active lesion as men­ tioned in the medical certificate. Learned counsel submitted that these colud not be considered as grounds for the awarding of lesser penalty to him and that, therefore, his sentence should be enchanced from life imprisonment to death under section 302 P. P. C. I have carefully considered the arguments advanced by learned counsel for the appellant as well as the complainant. Learned counsel for the appellant has first argued that the investigation, in the instant case, was conducted in a dishonest manner and to illustrate this point he bad taken me' through the statement of-the Investigating Officer, which according to him, indicated that he did not receive any information in the form of a ruqqo from the hospital authorities but might have reached the sport and had taken the deceased in an injured condition himself to the hospital. In this connection learned counsel had also pointed out that according to the statement of the Medical Officer and his record, the patient had been brought by the police to the hospital and by the Investiga­ ting Officer himself. The doctor did not mention the presence of the eye-wiinesses at the time the deceased was brought to the hospital in an injured condition. But in my view this ground is not strong enough to raise a presumption that the entire investigation bad been conducted in a dishonest marner. In this very connection learned counsel had also referred to a portion of the statement of the Investigating Officer to the effect that a dispute did arise as to the identity of the assailant between the deceased and his relatives at the time of the recording of dying statement and that such a thing was very common in such a situation. First of all this fact is denied by she Medical Officer who was present on the spot and who had stated thai no such dispute had arisen before him and furthermore that he remained present when the dying statement of the deeceased was being recorded. Learned counsel for the appellant had attempted to argue that if the Investigating Officer had made a concession in favour of the accused party, then he could not be considered as a reliable person for having correctly recorded the dying statement and that if it was not to be considered as a concession, ;hen the honesty of the Investigating Officer was questionable as it affected the reliability of his statement. But in my view this statement of the Investigating Officer may not be a concession made in favour of the accused party. This argument had also been raised before the trial Judgebefore whom the Investigating Officer had made his statement and who was in a better position to judge as to with what frame of mind he was making the statement, but the trial Court arrived at its own conclusion as discussed in paragraph 25 of the judgment. Learned counsel also stated that the Investigating Officer produced recovery witness who was an enemy of the appellant and in this way also he could be considered as having conducted the investigation in a dishonest manner. But the recovery evidence had been rightly disbelieved and, therefore, I am not inclined to comment ou it. From the perusal of the statement of the Investigating Officer I am not left with the impression that the investigation had been conducted in a dishonest manner and, therefore, the argument of learned counsel on this point is not valid. Learned counsel for the appellant than argued that the deceased, in the instant case, was ( Aq. By.) Appael &revision dismissed

PLJ 1983 CR417 PLJ 1983 CR417 Present : mazhar-ul-haq, & lbhkasap khan, JJ KHALID JAVID—Appellant Versus THE STATE—Respondent Cr. App. No. 37 of 1981 M & Ref. No. 7 of 1981 (BWP), heard on 22-2-1983. (i) PakfetM Pen! Code (XLV of 1860)- —S. 302—Murder—Offence of—Conviction—Evidence, appreciation of—Relations between parties admittedly strained—Evidence of motive relied—Ocular evidence by natural witnesses, believed to be true and convincing—Appellant, a real nephew of informant- Evidence of Waj Takar, as well as that of recovery of cycle hired by accused and used in incident, believed — Medicial evidence corroborating informant's statement as to taking of injured to hospital and soon after death coming to hospital for lodging report— Plea of alibi found fabricated and false—Case being overwhelming against both accused—Conviction and sentence, to be maintained in circumstances—Appeal dismissed. [Pp. 422, 423, 424 425 }A,B,F, G&K ii) AIM —

False plea of—Effect of—Confirmatory circumstance— Held : False plea of alibi being instance of relevant conduct of accused to be confirmatory circumstance of evidence against |him—Criminal Trial— Evidence Act (1 of 18727)—S. 8. [P. (til) Criminal Trial—

Substitution for real offender—Phenomenon of—Held: Substitu­ tion to be rare phenomenon in murder cases. [P. 423JC (iv) Criminal Trial—

Witness—Inimical—Witness, Mukhtar of informcnt, having no personal animosity with accused— Held: Mere fact of such witness having also previously appeared as witness in civil suit against father of accused not to make him inimical towards both accused. {P. 423JZ) (v) Criminal Trial—

-Witness—Interested—Witness only tenant of deceased's father— Held : Fact of such witness being tenant of deceased's father not to brand him as interested witness. [Pp. 423 d 424]E (vi) Criminal Trial—

Guilty mind—Conduct of— Held : Depression, tension and aggres­ ion to be conduct more akin to conduct of guilty mind, [P. 42S]£f Kht Sultan Ahmad, Kh. ZiaudinA Mr. M.A. Ghmi Advocates for Appellant. Ch. Inayatullah Cheema, Advocate for A.G. & Mr. Af.B. Zemaa Advocate for Complainant. Dates of hear ing: 20/21/22-2-1983. judgment Mazhar-ul Haq, J.—Khalid Javed (31/32) and his friend Khalid Iqbal V (22) were tried for the murder of Muhammad Halim, a real uncle of the former accused. They were convicted under Section 302/34 P.P.C. on 17-5-1981. by Mr. Muhammad Mian Qureshi, Sessions Judge, Rahimyar Khan. Khalid Javed was sentenced to death and to a fine of Rs. 2000 in default to undergo R I. for one year. Khalid Iqbal was sentenced to imprisonment for life and fined Rs. 2000 in default to undergo one year R.I. further. The appeals of the convicts, the connected murder reference and the revision for the enhancement of sentence are before us. 2. In this case Khalid Javed's father Yaseen and Dr. M.A.A. Aziz who were defence witnesses of Khalid Javed's plea of a//Wwere also sent up for trial for the conspiracy of murder, but on 9-10-1981 I.e. much before the commencement of the trial in this case, they were acquitted by the trial Court under Section 265 (K) of the Cr. P.C. 2. Both civil and criminal cases were pending between the parties of this case. Muhammad Halim (deceased) was pursuing the litigation on behalf of the complainant party. This, according 10 the prosecution, was the motive in this case. In the evening at 6 P.M. on 12-8-1977 Muhammad '" Aziin (informant) was on his tractor which he had parked on the Kbanpur bye-pass road adjacent to his land. His brother Muhammad Haleem deceased was standing on the road giving directions to his servant Abdul Ohani wh > was preparing the furrows in the field, Just then Khalid • Javaid and.Khalid Iqbal accused appeared their on a cycle. Khalid Iqbal aught hold of Haleem in a Japha from the front. Khalid Javaid inflicted two knife blows to him on bis left leg. ob the alarm of P.W. Muhammad Haleem. Muhammad Azim leaving bis tractor there rushed towards the place of occurrence. Abdul Gbani also ran towards them. The two accused fled away on the cycle. Muhammad Haleem fell down. Abdul Majid who was coming on a cycle bad also reached there and had witnessed the occurrence. The witnesses brought Muhammad Haleem to the Civil Hospital, Khanpur in a tractor trolly. On reaching there Muhammad Haleem died. P.W. 14 Muhammad Azim went to Police Station, Khanpur situated at a distance of two furlongs from the place of occurrence. He made report Ex. M.A. at 6. 40 P.H. the same day to P.W. 18 Mafamood-nl- Hassan S.I. After registering the case the S.I. went to the hospital, prepared the necessary documents and sent the dead-body for its post­ mortem examination. On bis arrival at the hospital Muhammad Haleem who was then alive was examined by P.W. 1 Or, Muhammad Afzal Hashmi, Medical Officer, at 6 30 P.M. the same day. He noticed the following injuries on him:— (I) One incised wound 2|'x2/3" deep to wound No. 2 on the back of middle and lower third junction of the thigh. There was a cut in the dhoti worn. The wound was actively bleeding and the patient was in profound shock and restlessness. This was entry wound. : " : (2) One incised wound 2/3X1/4'and deep to injury No. 1 on the inner side of lower Jrd of the thigh. There was a distance of 6}" between injuries No. 1 and 2. This was exit wound of injury No. i. (3) One incised wound 1|X 1/4" deep to injury No. 4 on the upper part of the outside of left half. There was cat in the dhoti worn. This was entry wound. (4) One incised wound }"x 1/3" deep to injury No. 3 slightly lower and 4 inches inner to injury No. 3 on the inner side of left calf. This was exit wound of injury No. 3. The doctor observed that Muhammad Halim was brought to the hospital at 6.30 P.M. and he expired at 6.34 P.M. Exhibit P.C. is the medico-legal report. 3. On the following day at 7 A. M. the said doctor held the autopsy «• the deadbody of Muhammad Halim and noticed the same injuries on it which he fonnd on Muhammad Halim on the previous evening. In his opinion Muhammad Haleem died due to severe bleeding caused by injuries No. 2 and 3, which cut the big blood vessels in the leg of the deceased. The two injuries were sufficient to cause death in the ordinary course of nature. 4. P. W. 18 Mahmood-ul-Hassan, S. I. went to the pjace of occurrence on 13-8-1977. He collected blood-stained earth from there, it was made into a sealed parcel through Memo. Ex. P. G. attested by P. W. 14 Muhammad Azim. P.W. 16 Abdul Gbani and the investigating officer. He also took into possession kassi (P. 6) from there through Memo. Ex. P. N. attested by the name aforesaid witnesses. Nine documents in proof 9. Learned counsel for the appellant contended that Khalid Javed had no motive against the deceased because he was not a party to the civil liti­ gation. There is no force in the submission because Haleem, deceased, was the real brother of Azeem; informant, who was pursuing the litigation on behalf of others. However, is in the evidence that Khalid Javed, acccused. initiated security proceeding against Haleem. deceased and 7 others. Fur­ ther, we find that Khalid Javed. accused, admitted at the trial that there Iwas civil and criminal litigation between his father and Azeem, informant. Isimilarly Khalid Iqbal also admitted the litigation between his father and lAzeeOJ informant. In view of these admissions, it. is no denying of the •fact that the relations between the parties were strained. 10. The sole question for determination in this case would be whether reliance could be placed on the evidence of 'he eye-witnesses. Trial Court came to the conclusion that P.W. 14 Muhammad Azeem, informant, and P.W. 16 Abdul Ghani were natural witnesses of the occurrence. In so far as P.W. 15 Abdul Majeed was concerned it observed that he reached the spot immediately after the occurrence when Haleem T (deceased) in an injured state was helped by Azeem and Abdul Ghani or putting him in the tractor-trolly for taking him to the hospital Cirticizing the finding, (earned counsel for the appellants contended that in fact none saw the occurrence and the eye-witnesses had stage-managed <. • their presence at the spot. He argued that Azeem. informant, who was ] a big land-lord was not supposed to be ploughing his own land. He further contended that 5-45 p,m. was not the time for the type of worjc which was being done by the informant and his mukhtar Abdul GhahT> Generally the villagers plough their land in the morning. In support his submission that the eye-witnesses were not there, he also argued that in the medicolegal report Ex. P.C., the name of one Haji Mustafa was shown as the person who brought the injured to the hospital and had the eye-witnesses gone to the hospital, then the name of the informant alone would have been entered therein. He further contended that Ghulam Nabi who was said to be preparing the furrows in the field with a kasst could use it in defence of the deceased and would not let the accused escape. Morevoer, Azeem, informant, with whom the litigation was pending would have been the main target. We do not see any reason as to why a landlord who owns a tractor would not plough the land him­self ; and as to why they did not plough the land in the morning is a question which could have been suggested to the witnesses to explain. In any case this is not a material submission at all, A landlord may plough his land any time during the day. We, therefore, do not see any force in the argument. As to the medicolegal report. Ex. P.C., the name of one Haji Mustafa was written but scored off and the name of the informant is also written therein. P.W. 1 Dr. Muhammad Afzal who prepared the medico-legal report under cross-examination admitted that he scored off the name of Haji Mustafa and wrote the name of the informant. He. however, denied the suggestion whether he did it at the instance of the police. It is noteworthy that the doctor was not suggested that Azeem. informant, was not present when be made this entry. The scoring off the name of Haji Mustafa by no means suggests that it was done at a later stage at the instance of the prosecution and that Azeem, informant, did not bring the injured to the hospital. On Ithe other hand, we find that the informnnt denied the suggestion whether juiaji Mustafa accompanied the injured to he hospital. We also find that "Azeem. informant, in the F.I.R. mentioned that his brother was taken by him to the hospital where he denied and thereafter he went to make a report to the police. Further, according to the doctor, Haleem diet while he was being examined. This corroborates that informant state-' ment who made prompt report to the police. Had the defence version been true that one Haji Mustafa alone brought the injured to the hospital then it would not have been difficult for the defence to produce this man. particularly, when the defence did suggest to the doctor that Haji Mustafa was a bus driver. Learned counsel for the complainant contended that in fact this entry was made to spoil the prosecution case. Be that as it may, the fact remains that the defence could have produced Haji Mustafa which was not done nor was the investigating officer asked whether he tried to trace Haji Mustafa and record his statement. We are. therefore, satisfied with the statement of the informant that be took the deceased to the hospital from the place of occurrence. The defence argument is that bad Abdul Ghani been there with a kasst, instead of leaving it behind, he could have used it in defence of the deceased. True. Abdul Ghani did state that when he heard deceased's cries "Bachao Bachao". he left the kassi at the place where he was working and ran towards the deceased while the accused got away on the cycle. We do not find anything unnatural in this situation because after the attack which could not have taken more than a few seconds, the accused fled away on the cycle and the" eye-witnesses were more concerned a bo ut the injured. We see no reason to doubt their statements. The are natural witnesses of the occurrence as they were working in their $eld. Moreover, it was a daytime occurrence. If any one other thai the accused bad committed the crime, they would have then named that •person because substitution is a rare phenomenon. 11. It was next contended that the eye-witnesses were interested against the accused because of previous litigation between the parties. The civil and criminal litigation has net been denied by the informant. At the.same time, this fact can also not be ignored that Khalid Javed (accused) is a real nephew of the informant. In so far as, Abdul Ghani was concerned, no doubt, he is a mukhtar of the informant and under cross-examination, he admitted that Haleem (deceased) had filed a civit _ suit against the father of Khalid Javed (accused) in which he had appeared as a witness but this fact alone would not make him inimical towards both the accused because he had no personal animoci ty with them. As such it would not be fair to brand this witness as inimical towards the accused. Simply because he is a mukhtar of the informant, he would not falsely rope in the accused on a capital charge against whom he has no personal grudge. P.W. 15 Abdul Majeed, the third eye-witness of the occurrence, claimed to have seen the occurrence from a distance of 20/22 karams. Since the actual attack could not have taken more than a few second, therefore, we are inclined lo accept the view taken by the trial Cjurt that ihis witness reached the place of occurrence soon after the attack. 12. Prosecution also relied on the waj takar evidence. After the occurrence both accused were seen at about 7 p. m. by PW 12 Jamshed, a proprietor of a transport agency. This witness was present with his truck at the gate of the Bahawalpur Textile Mills, and knew both the accused. According to him, they got down from a tractor-trolley and boarded a bud bound for Rabimyar Khan. The fact that this witness was a tenant of|£ (deceased's father would not brand him as an interested witness. This (witness frankly admitted that about five years before the occurrence Khalid Javed (accused) had been using his telephone for personal calls and had not paid him the dues. This, however, would not make him an inimicalwitness. It is difficult to believe that he would falsely rope in the accused in a murder case for not paying the bill of same of the calls made by the accused. This suggestion put to the witness under cross-examination, how­ ever, affirmed that Khalid Javed (accused) was not a stranger to him and was known to him enough that he even allowed him to use his telephone. PW 11 Asgbar was an other witness who met the accused the same evening at 9 p. m. at Sadiq Abad bus stand and they travelled with him upto- Multan the same night. This witness had some business with pass-port authority, therefore, he went to Multan. According to him, the accused boarded another bus from Multan for Lahore. The witness admitted that Khalid Iqbal was not known to him previously, though, he knew Khalid Javed before from Lahore as he had often seen him at the Lahore Air-port as the witness was then serving in the F. S. F. i. e. in the year 1974-75. The fact that before the police the witness had stated that he knew both the accused earlier, would not discredit his testimony because he had no enmity against either accused. Learned defence counsel contended that after the occurrence, if the accused were to go to Lahore, they did not have to go to Sadiq 'Abad which was in the opposite direction, as such the two waj takar witnesses have been put up by the police to support its case that the two accused were in Khanpur on the day of occurrence. We se no force in this contention for the simple reason that these two witnesses \ju '! have no axe to grind. They are not related to the deceased and have no 1 ! enmity with the accused, so as to rope them on a false murder charge. ' / ' Only the accused would know better as to why they went to Sadiq Abad iL ' first. We find no reason to disbelieve the waj takar evidence. vc-4 13, There is yet another confirmatory circumstances in this case on which the prosecution has relied against the accused i. e. the hiring of cycle- Ex. P. 4. by the accused from Akhter Cycle Works, Khanpur. PW 8 Ahmad Din and his brother PW 9 Akhter are the proprietors of this concern. According to PW 8 Ahmad Din, the two accused came over 10 their shopon 12-8-1977 for hiring a cycle. He handed over the cycle Ex. P. 4 Khalid Iqbal, accused, and made the entry in his register P. 5 at P. 5/1. The cycle was not returned by the accused. Three days thereafter, PW 9 Muhammad Akhtar saw a relation of Khalid Iqbal, accused, passing in front of their shop on cycle Ex. P. 4. He took it from him and made an entry about its return in register P. 5 at P. 5/8 and calculated Rs. 14/- as the due amount which he entered in the register. On 23-8-1977. police came to their shop and took into possession cycle Ex. P. 4 and register P. 5 through memo Ex. P. K attested by Muhammad Akhter and other witnesses. Learned defence counsel contended that the story of the hiring of the cycle and its recovery was police paddjng in this case. According to him, the entire evidence was cooked up. In support of ihi& -^ submission, he argued that register P. 5 was not properly bonnd and wa& not even regularly maintained and there were a number of over-writings. True, the register is in bad shape but it is common experience that such like small shop-keepers that give cycles on hire are not such establishment that maintain regular registers and accounts. In fact registers like P. 5 are a mere memorandum. In our opinion, what is material in the evidence of these two brothers is whether they have any motive to put up a false story against the accused on a capital charge. PW 8 Ahmad Din said under cross-examination that Khaiid Iqbal, accused, was known to him as a resident of Kbacpur, who often took cycle on hire from even before 12-8-77 ( I. e., the day of occurrence). He admitted that as a matter of routine, they never took the signatures of the persons who hired cycles. We have earlier observed that registers like P 5 are a mere memorandum and generally in small towns cycles are given on hire to those who are the residents of the same place and are not totally strangers to the town and its people. There is nothing to indicate as to why these brothers should depose against the accused. On going through their evidence, we are of the view that they have not tried to exaggerate or conceal anything. They stood the test of cross-examination, which brought out nothing against them. We are, therefore ot the view that the trial Court rightly took their evidence into consideration ^d 3rd day of the occurrence. In thi A. A. Aziz are mere sedative. Being a specialist incharge of the mental hospital, Dr. A. A Aziz so-called ailment of Khaiid Javcd by the name of any particular serious mental disease. Depression, tension and aggression is a conduct more akin to the conduct of a guilty mind. We do nut consider it necessary to gojj? into the details of the past service career of this doctor which was disputed! during cross-examination of the witness. Learned defence counsel argued' tha; the doctor had been exonerated of the charges. The fact, however, would still remain that his conduct had been open to question even earlier for falsifying official record. Though, according to Dr. A. A. Aziz, be had examined Khaiid Javed on 21-8-197? in the morning and again in the evening, he had advised him to continue raking phino-barbitone and tryptanol tablets, these medicines were for depression and epilectic fits. It is noteworthy that the doctor did not consider it a fit case for admission to the mental hospital and it was only at the request of the accused's father that he was prepared to admit Khaiid Javed but he did not admit him on the following day i. e. 13-8-1977 being a Friday. Normally, it is the doctor who advises patients for admbsions to the hospital and a conscientious doctor would not admit a patient to the hospital just because the patient so desires. The doctor did not mention anything about the details of the mental health of the accused which required regular attendance in the hospital. It all appears to be a cooked up affair between the doctor and the father of the accused. We may also add here that Khaiid Javed had been a student of the B.Sc in the Engineering University. Normally, bis father would not mar his future career by creating a record of bis admission in the mental hospital until or unless it was a real medical necessity that he had to be admitted. We are not satisfied with the evidence of Dr. A. A azjz As against the defence version, there is overwheisaiaf evidence of the reliable prosecution witnesses against the accused It may also be aentioned here that under section 8 of the Evidence Ac', & fais? plea of iJibi is an instance of relevant conduct of the accused confirmatory circumstance of the evidence against him. We may alto refe ..j ; atcment

l PW2 Dr. Sher Muhammad, Medical Superintendent, D K <J Hospital Rahimyar Khan who examined Khslid Javed on 28-8-1977 and found him normal. Ex. PB/1 is his report. IS. In the end, learned defence counsel argued that the location of the injuries being on the lower part of the body of the deceased i. e. on the legs. It showed that the victim was not standing because in order to cause injuries the assailant world have to bend down which is not the prosecution case. We have considered the submission. The evidence in this case is that the deceased was held by Khalid Iqba! from the front and the injuries were inflicted by Kbalid Javed with the knife. Had Khalid Javed inflicted injuries on the upper part of the body of Haieem (deceased), he was likely to hurt his own companion. We, therefore, see no force in •the submission. The case is overwhelming against both accused. We are ^satisfied with their guilt. We dismiss their appeals, maintain their convic­ tion and sentences. Khalid Javed's death sentence is confirmed. Since Kbalid Iqbal did not use the weapon, we are, therefore, not inclined to enhance his sentence. The revision petition is dismissed. (Aq. By.) Appeal dismissed

PLJ 1983 CR426 PLJ 1983 CR 426 Present : mohammad aslam mian, J DONA—Appellant versus THE STATE-Respondent Cr. Appi. Nos. 461 to 464 of 19SO, decided on 29-6-1983. (i) Pakistan Penal Code (XLV of I860)—

Ss. 302, 304 Part II and 300, Exception 4—Sudden figbt—Conviction u/s 302—Alteration of to that u/s 304, Part II—Evidence, appraisal of—Quarrel taking place over cattle having been let loose by accused resultantly damaging crop of deceased person—Both parties armed with Seta and dangs —Incident taking place without premeditation, in heat of passion upon sudden quarrel—Each accused giving only one Sotas blow and not repeating—Appellant, held, not to be said to have laken undue advantage or acted in cruel and un­ usual manner— Held further : Case stands covered by Exception 4 of S. 300 PPC.—Conviction altered from S. 302/34 to S. 304 Part—II, P.P.C. [P. 434JD & E (ii) Pakistan Penal Code (XLV of 1860)-™ ——S. 100—Self defence—Right of—Act of accused-—Appellant letting loose thek cattle in field of deceased which resuSfanltly damaging crop of deceased and fight taking place there—Appellant, after receiving injuries at hands complainant giving fatal injury causing death of deceased—Act of appellant, held, cannot be treated as in self defence or in defence of co-accused as they being trespassers and their cat tie damaging crop of deceased against whom he had right to defend his property. [P. 434JC (Hi) Criminal Trial— --- Witness — Contradiction with his statement befor police — Effect of — Witness contradicting with his statement recorded by police — Held: Evidentiary value of testimony in court to be reduced — Witness stating to have followed deceased and witnessed occurrence but no such statement recorded by police — Held: In view of con­ frontations with his statement before police, witness not to be positively said to have witnessed occurrence. (Pp. 431 & 432J/4 & B P L D 8965 SC 188 rel. Appellant in person Mr, Muhammad Sal eem Shad, Advocate for Respondent, Dates of hearing: 2/9/12/13/14/15-3-1983 JUDGEMENT In a trial held by Sh Lmuf- -ur-Rebmac, Additional Sessions Judge, Sahiwal, under sections 302/323/H P. P. C Muhammad Jabangir son of Kala aged 30 years, Kaia and D&fla sons of Afenaad aged 80 and 75 years, respectively, and Sooba son of Sajwara aged 30 years, ail Watt u by caste, residents of Chak Kamboh, tehsii Depalpar, district Sahiwal, were convict­ ed and sentenced to life imprisonmem and s fiae of Rs. IGOG/- or in default of payment of fine to undergo father one year's R. I. each, on two counts, for causing the death of Imam Ais an«J Sakfai Muhammad deceased Muhammad Jahangir was further convicted aod sentenced to one year's R, Land fine of Rs. 200/—or in default thereof, to suffer furiher three months" R. 1. under section 323 PPC. All the sentences were ordered to run concurrently. It was directed by the learned trial Judge that the period during which each of the accused was detained in custody, shall be deduct­ ed from the above sentences under section 382-B Cr, P. C. 2. Muhammad Jahangir, Kala, Dona and Sooba, convicts, have fiied separate appeals through jail /. e. Criminal Appeal Nos. 461, 462, 463 and 464 of 1980, This judgment will dispose of all these appeals, 3. The occurrence allegedly took place on 17-1 1- 1976 at degarw ela in the area of mauza Saidpura six miles away from Police Station Hujra. The matter was reported to the police on the same day at 8. 00 P. M. by Khushi Muhammad and on that basis F. I. R. Ex. PO was recorded by Muhammad Hussain S. !. (P. W. 15). 4. Brief facts of the case are that on the day of occurrence Sbaukat Alt (P. W. JO) and Muhammad Tufail (P. W, 13) were grazing their cattle in the cotton field of Sakhi Muhammad deceased. In the meantime all the four appellants having softs in tbeir hands came there along with their cattle to graze them. However, Muhammad Tufail PW forbade them sot to let loose their cattle in tbe cotton crop but Muhammad Juhsngir appellant gave a soti blow to Muhammad Tufail on his left hand fingers and let loose the cattle in the cotton crop. Sbaukat Ali P. W. thereupon ran towards Kot Nazar Muhammad and informed Sakhi Muhammad and Imam Ali deceased about the situation. Sakbi Muhammad and Imam Ali deceased came over to the cotton field. The compbuotnt alongwttb oihen who was also present nearby, reached the spot on bwwing the noise. At the time when both the deceased were busy in ousting the cattle of the appellants from the cotton field, the appellants attacked Sakhi Muhammad and Imam Ali deceased. Sooba appellant gave a soti blow hitting Imam Ali deceased on his head followed by another blow given by Muhammad Jahangir on the head also Dona appellant then inflicted a soti blow on the head of Sakhi Muhammad. The soti blow given by Kata appellant also hit Sakhi Muhammad deceased on his head. Both the deceased fell on the ground and become unconscious. It is also stated in the F. I. R. that Sakhi Muhammad deceased had a stick with him and in self defence he injured Muhammad Jahangir appellant. The complainant and his companion tried to intervene but they were threatened with dire conseq­ uences. Thereafter all the appellants fled away with their sot is. 5. Initially a case under section 307/34 P. P. C. was registered against the appellants but on the death of the deceased the offence was altered to one under section 362/34 PPC. 6. After recording the F. I. R. Muhammad Hussain S. I. (P. W. 15) went to the hospital on learning about the death of Imam Ali and prepared his inquest report Ex. PW. Sakhi Muhammad also died, so he also prepared his inquest report Ex. PX and sent the dead bodies to the mortuary for post-mortem examination. Thereafter he visited the spot and completed all the formalities as to the collection of blood-stained earth and the recording of the statements of the P. Ws. He got Muhammad Tnfail PW medically examined. He arrested Kala and Dona appellants, on 18-11-1976 On the next day he arrested Muhammad Jahangir appellant who was in sn iujured condition at that time. He got him medically examined. On 21-11-1976 he arrested Sooba appellant. On 26-11-1976 appellants Dona, Sooba, Kala and Muhammad Jahangir, at different times, led the recovery of solas P. 7, P. 8, p. 9, and P. 10, which were taken into possession vide memos Ex. PS. Ex. PT, Ex. PU and Ex. PV, respectively. He got site plans Ex. PA and Ex. PA/I prepared from the Patwari. 7. Dr. Ehsanul Haq (P. W. 6) on 17-11-1976 at 7.00 P. M. medically examined Sakhi Muhammad deceased while he was alive and found the following injuries on his person. (1) A swelling on right temporal region and above it on the head with skin laceration 1/2 x 1/3" in it and slight colour in its middle was like contusion (l| x 1"). Swelling was S" x 4'. (2) A swelling on left temporal region 4|'x3|" with contusion mark in it 2" x 1. Swelling reached upto fore-head and area of head above temporal region. Both the injuries were dangerous to life caused with a blunt weapon within the duration of nine hours. After his death, Sakhi Muhammad deceased's post-mortem was con­ ducted on 19-11-76 and he found the above noted injuries. In his opinion these injuries were sufficient to cause death in the ordinary course of nature which resulted into the fracture of skull into pieces, interaal haem­orrhage of brain and shock. This doctor on the same day at 7.20 P, M. medically examined Imam Ali deceased while he was alive and found the following injuries on his person :— (1) A contusion mark on left temporal region and left fore-head and area of head just above temporal region 4 x 1. There was swelling in that area which was 6 x 5 and there was ecchymosis in left eye lid. (2) A swelling on right temporal region 5" x 4" and there was ecchy mosis in right eye and lid. Both the iujuries were dangerous to life and were caused by blunt weapon with in nine hours. After his dsath post-mortem on the dead body of Imam Ali deceased was performed by this doctor on 19-11-1976 and he found the same inju­ ries on his person. In his opinion these injuries were sufficient to cause death in ordinary course of nature which resulted in the fracture of skull into pieces, internal haemorrhage of brain and shock. He also examined Muhammad Tufaii P. W. on 18-11-1976 at 7.20 p, m. and found two abrasions on his fingers. Both injuries were simple in nature caused with a blunt weapon within the duration of thirty three hours. This doctor on 17-il-i976 at 6. 20 p.m. medically examined Muhammad Jahangir appellant and found the following injuries on his person. (1) A contusion mark below left eye and below left eye-lid 2' x I'. (2) A contusion mark on nose 2" x 1/2" and it was mostly on left side. (3) A tender swelling on upper lip mostly on left side. (4) A skin laceration on back of 1st and 2nd digits of right index finger with tender swelling all over it, that was 1| x 3/4". (5) Two skin lacerations on back of left index finger at 2nd digit 1/3" to Jx 1/5 "to 1/6". (6) A skin laceration on tip of left thumb at palmer side 1/3" x 1/5. (7) A contusion mark on back and outer side of left thigh 7" x 1". Later on injuries Nos. 2 and 3 were declared as simple while injury No. 4 as grievous. 8. In support of its case the prosecution relied on the following pieces of evidence :— (/) the evidence of motive ; (if) the ocular testimony ; (iff) the evidence of recoveries ; and (jv) the medical evidence. Shaukat Ali (P.W. 10) and Muhammad Tufaii (P.W. 13) deposed as to the motive. The ocular account of the occurrence was given by Khushi Muhammad (P. W 8) Muhammad Hanif (P.W. 9), Shaukat Ali, (P. W. 10) and Muhammad Tufaii (P.W. 13). The recoveries were supported by Muhammad Asghar (P. W. 14) and Muhammad Hussain S, I. (P.W. 15). 9. All the appellants when examined under section 342 Cr. P. C. refuted the allegations levelled against them. They also denied the recove­ ries at their instance. As to their involvement in the case appellants Ka!a, Dona and Sooba. however, stated that they had been falsely implicated in the case because of their relationship with Muhammad Jahangir appellant, As to the injuries on his person appellant Muhammad Jahangir explained :— "I was grazing my cattle in the vacant land adjacent to the land of the complainant party where there are bushes. One of the animate strayed into the cotton field of the complainant and his son Muhammad Tufail PW used abusive language against the owner of the animal i. e. myself, without naming me. f turned out the animal from the field but Muhammad Tufail PW was very abusive and I pushed him aside. He left the spot towards his house and shortly there­ after Sakhi Muhammad and Imam Ali came to the spot armed with sticks and they attacked me in the land just adjacent So the field of compiianant, I received the injuries at ihe hands of Sakhi Muhammad and Imam Ali and I defended myseit against them when I was under attack. The P. Ws are either close relations of the complainant or his servant." No evidence was led in defence except a report of the Medical Super­intendent DHQ Hospital, Sahiwal mark 'A' and copy of the order of the Lahore High Court dated 28-7-1979 Ex. DD tendered by Dona appellant 10. The learned trial Judge discussed the evidence as to motive io para No. 12 of his judgment and believed it. The ocular testimony was also accepted after the same having been discussed at a great length in paras 13 to 16. The recovery of the weapons of offence, according to him, was of 00 use to the prosecution since the solas were not stained with blood. He believed the medical evidence observing that it was in full conformity with the ocular testimony. He dealt with the defence version in para No. 21 of his judgment and rejected the plea of self-defence raised by Muhammad Jahangir appellant. 11. Appellant Muhammad Jahangir in is memorandum of appeal has taken up two positions, firstly that he alongwith iS/20 boys of the same age were grazing their cattle near the village, Both the deceased gave oli blows to hit cow, When he forbade them from doing so, he was given severe beating, in order to help him and on account of ifassr persona) grudge the son and nephew respectively of one Qutba Dogsr attacked the deceased since Sakhi Muhammad deceased had killed the son of Qutba Dogar and secondly that the complainant party had the apprehension that since Muhammad Jahangir was seriously injured be might die a & result of that, the complaisant party to avoid the consequences of tbe injuries caused to Muhammad Jahangir, falsely implicated Muhammad Jahangir, his father, his uncle and maternal coissin. When he survived the injuries the police in their zeal to succeed in the case, challaned the appellants despite the fact that Muhammad laliangir appellant was carried on a cot from the place of occurrence to the hospital. He being himself injured was not ie a position to cause injuries to both the defused. At the place of occurrence his father, uncle and maternal cousin we?e not present. The Investigating Officer wag presented with bis medical report expired. Suba appellant has more or less taken up the same position as to the occurrence as has been taken up by Muhammad Jahangir appellant and in addition he has maintained that be is innocent. Kala appellant has also as to the occurrence said the same but in addition he has stated that he being in extreme old age /. e. 85/90 years suffering from tremor was in-capable of patting the deceased to death who was 35/36 years old armed with a dang. He is innocent. Appellant Dona in his memorandum of appeal has said that he is 80/81 years old and is almost blind. According to him it was not possible for him to have killed the deceased who was a stout young man armed with a dang. He has attacked the prosecution version by maintaining that the prosecution story that only one person from the complainant side was grazing his cattle while ai! the appellants were there is unbelievable. Similarly at the time of first incident no one from the complainant party was there but when the deceased reached the spot they were accompanied by their relations and no independent person witnessed the occur­ rence. 11. The learned counsel for the State has supported the conviction of all the four appellants by maintaining that even if the evidence of Shaukat Ali P. W. is not believed, there arc three eye witnesses who have all deposed as to the details of the occurrence. Muhammad Tufail P. W. wav injured by Muhammad Jahangir appellant, so his presence can not be denied, as such on the evidence of this witness alone the conviction can be sustained. The medical evidence can be invoked so as to corroborate the ocular testimony. He has further submitted that the intention can be formed at the spur of the moment, in this case all the four appellants had formed and intention to kill both the deceased. 12. In view of certain facts appearing in the evidence of the P.Ws. this case requires an analysis of the evidence as to the presence of the. witnesses at the spot at the time of the occurrence. Sbaukat Ali (P.W. 10) gave an account of the occurrence in full detail. He stated that after Jahangir appellant had given a sota blow causing an injury on the left band of Muhammad Tufail P. W. he ran towards the tube well whereat he narrated the incident to his father Imam Aii (deceased) and Sakhi Muhammad went to the cotton field and be followed them. In bis crossexamination when be was confronted with his statement under section 161 Cr. P. C. he stated that he did not state before the police that he learnt afterwards that the appellants bad injured his father and Sakhi Muhammad and that he had not returned afterwards, wherein it was so recorded. According to an observation of the Supreme Court raade in the case of Nasar Hussain v. Muhammad Shaft and others (PLD 1965 S C 188) that when a witness i& contradicted with his statement recorded by the police the only effect that it cairhave is to reduce the evidentiary value of his testimony ia Court and make the witness unreliable on the point on which he is so contradicted, so applying the same it can be positively said that after Sbaukat Ali P.W. had informed Imam Ali and Sakbi Muhammad deceased he did not follow them when the Sstters set out towards the cotton rleld where the occurrence look place, so Shaukat AH PW cannot be taken as having witnessed the part of the occurrence which Jrelated to the causing of injuries to both the deceased by I appellants. the 13. Khushi Muhammad PW 8 is real brother of Sakhi Muhammad deceased and Muhammad Hanif P. W 9 is real brother of Imam All deceased. These two witnesses admittedly were not at the tubewel! where the alleged information as to the receiving of injuries by Muhammad Tufail PW at the hands of Muhammad Jahangir appellant was given by Shaukat Ali P.W. They were further at some distance from she tubewell in their land. The dis'ance between trie place of occurrence and the tubewell as stated by Khushi Muhammad PW in his cross-examination was 8/9 acres, Khushi Muhammad PW had further stated that when the iaforma:ion was cast to both the deceased it wax so loudly done that they could from such a distance hear Shaukat Ali PW narrating the incident of letting loose the cattle and pertaining to Muhammad Tufail PW upon which information they followed wish a distance of one acre as intervening. However in the F.I.R. with which he was confronted he had stated that he, Muhammad Hanif and Shah Muhammad reached ihe place of occurrence after hearing the routa. Muhammad Hanif PW also s'ated in his evidence that he alongwith others followed the deceased and witnessed the occur­ rence. However, he was confronted with his statement before the police fllwherein it was not so recorded. In view of these confrontations it cannot be positively said that these witnesses witnessed the occurrence. Had they been otherwise there at the place of occurrence as stated by them, then the appellants could not have taken to such a free hand as it was stated. As a matter of course they would have intervened one way or the other and not preferred the role of passive spectators. 14. Now the case of the prosecution as to the ocular account simply rests with the evidence of Muhamraad Tufail P.W, who is 20 years old and the son of Sakhi Muhammad deceased. He had received injuries at the hands of Muhammad Jahangir appellant, so his presence cannot be denied. His nearness to one of the deceased will ordinarily put one to receive his account of the evidence with great caution so as to sift out the true facts from the embellishments. The other eye-witnesses generally toe the same line as happens to be set out in an F.i.R. The account given by Muhammad Tufail P.W. cannot bs received as such verbatim trae for the siaipie reasons that the event put as to its detail does not appear to be plausible. If Sakhi Muhammad deceased after having taken a stick from Muhammad Tufail PW had started round­ ing up the cattis of the appellants and if as stated by Muhammad Tufail PW that all the above mentioned persons then advanced towards him (Sakhi Muhammad deceased) and on the statement of Sakhi Muhammad deceased that he would be taking their cattle to the cattle pond, the appellants abused him, then instead of giving him sola blows at that time there and then why Imam Ali deceased was selected first by Sooba and Muharamad Jahangir appellant for xota blows when Imam Ali deceased was not shown either rounding up the cattle or intervening in any other way and if it is taken that all the four appellants after two out of them had given blows to Imam Ali deceased advanced towards Sakhi Muhammad deceased with Muhammad Jahangir as ahead of them, it i& carious enough that how Sakhi Muhammad deceased could cause seven injuries out of which one had been described as grievous, to Muhammad Jahangir appel­ lant when all the four appellants had advanced towards him. Muhammad Jahangir himself was armed with a sot a He could very well himself resist the sola blows by crossing his own sota and yet it can never be taken that ail the other three appellants or Dona and Kala appellants waited first Sakfei Muhammad to complete his action of giving blow and then they gave their respective blows as mentioned in the evidence of Muhammad Tufaii. Had all the four appellants advanced at a time Muhammad Jahaagsr appellant woyld have in no circumstances received seven injuries. 15. On she other hand the case put by one of the appellants namely Muhammad Jahangir as mentioned in his statement under ection 342 r. P.C. that the incident started when only one of the animals belonging' to Muhammad Jahangir had strayed into the cotton field of Sakhi Muhammad deceased on which after exchange of abusive language Muhammad Tufaii PW was pushed aside. After having received injuries at the hands of Sakhi Muhammad and Imam Ali deceased he defended himself against them when he was under the attack. The defence as adopted also does not sound as plausible for the reason that regarding the first part Muhamojad Jahangir appellant had minimized his role towards Muhammad Tufai! PW who stood at least corroborated by the medical evidence to the extent that be received injuries with a blunt weapon on his fingers. As to the act which was committed by Muhammad Jahangir after be had received the injuries at the hands of Sakhi Muhammad and Imam Ali the same is not mentioned vividly. The statement stops with the expression that he defended himself against them when he was under attack. If it is construed that Muhammad Jahangir appellant then causd blows to both the deceased in bis defence, the situation so indicated appears ,a» not plausible on the face of it because he being single handed could not have been able to inflict two injuries to each of the two deceased on the right and left sides of the head from whom he bad already received sever) injuries. 16. Both the sides have not come out meticulously with the correct facts, therefore, even if the prosecution case is put in juxtaposition with that of the defence one is left with no alternative but to reconstruct the actual happening with the help of the facts on the record, !?. From among the appellants Muhammad Jahangir appellant has admitted the presence at the place of occurrence and be has also admit­ ted the presence of Muhammad Tufaii P. W, and as to the skirmish which took place between him and Muhammad Tufaii, in his statement tinder sccfion 342 Cr. P. C. From the facts of the case it is positive that the occurrence did take place with'- ', ,„ cotton field of Sakhi Muhammad deceased and due to either straying of animals into the cotton field or having been deliberately let loose, a skirmish took place which ultimately led to she main occurrence. It cannot be said that Muhammad Tufaii PW will go to the extent of substituting the appellants for the real participants in the absence of any motive or enmity. It appears that after Muhammad Tufaii P.W. received an injury Shaakaat Ali P. W. reported the matter to Sakhi Mubummad deceased wr;o taking alongwitb him Imam Ali deceased being his servant came to the field and there Sakhi Muhammad deceased reprimanded Muhammad Jahangir for causing an injury to Muhammad Tufaii and for grazing the cattle in the cotton field and damaging the crop upon which a quarrel ensued between both of them in which Sakhi Muhammad deceased caused injuries to Muhammad Jahangir aided with Imam Ali deceased, thereupon the other three appellants who were present there attacked both the deceased alongwith Muhammad Jahangir. Kala and Dona appellants inflicted sot a blows one each on the head of Sakhi Muhammad deceased. Muhammad Jahangir and Sooba appellants caused injuries with their dangs on the head of Imam Ali deceased. It is relevant to note that the learned Add], Sessions Judge has rightly observed that Dona appel­lant was not bling at the time of commission of the crime. On the other hand if in this sequence the fight is treated to have taken place after Muhammad Jahangir appellant had received injuries then whether the part played by Muhammad Jahangir and the other appellants can be treatted as in self-defence or in defence of Muhammad Jahangir respectively, the answer is 'no', firstly because the appellants were the irespassers and their cattle had damaged the crop of deceased Sakhi Muhammad against whom alongwith Imam Ali he had the right to defend his property. Everything appears to have taken place without any premeditation in a sudden light in the heat of passion upon a sudden quarrel. None of the appeiants can be said to have taken an undue advantage or acted in a cruel or unsual manner since each appellant had given only one blow and not repeated. The grounds set up by the appellants in their memorandum of appeal are altogether fantastic not having any relation with the facts of the case nor such a case was raised by the appellants at the trial. The appreciation of the evidence as conducted by the learned trial Court is not justified because of certain improbabilities within the case itself. It has otherwise rightly disbelieved the recoveries being not stained with blood. 18, As a result of the above discussion the occurrence took place without any premeditation in a sudden fight in the heat of pasfion upon a sudden quarrel, therefore, the case stands as covered by Exception 4 to secion 300 P.P.C. as such their conviction and sentences under section 302/34 PPC, on two counts are set aside and they are found guilty under section 304-H PPC, because they can be fixed with the knowledge that blows on the head with solas were likely to cause the death of the deceased though they were not animated with an intention to cause death or to cause such bodily injury as was likely to cause death. Accordingly, appellants Muhammad Jahangir, Sooba, and Kala, are sentenced to icn years R.L each with a fine of Rs. 500 or in default thereof to undergo fur;her six months R.I. each. Jahangifs conviction and sentence is/s. 323 PPC is upheld. The sentences awarded to Muhammad Jabangir sppellant shall run concurrently. Dona appellant was bailed out by this Court during the pendency of his appeal under the report of the Medical Super­ intendent D.H.Q. Hospital, Sahiwal that he was about 65/70 years of age and suffering from absolute Olocoma and was blind person. The misfortune has already visited him, therefore, on compassionate ground he is sentenced to five years' S.I. He is already on bail, he will be taken into custody to serve the remaining period of his sentence. All the four appeals are therefore, partly accepted. The rtsult of these appeals may be conveyed to the appellants in the jail. (Aq, By.) Appeal Partly accepted.

PLJ 1983 CR435 PLJ 1983 CR435 Present: muhammad aslam mian, J INAYAT and Another—Appellants versus THE STATE-Respondeni Cr. Appeal No. 1176 of 1979, decided on 5-6-1983. (J) Pakistan Penal Code (XLV of i860)—

S, 302/34—Murder—Offence of—Conviction—Evidence, appraisal of—Offence, alteration of to that u/s. 324/34—All appellants (4 in number) participating in occurrence—Testimony of injured witnesses believed—Complainant's presence at occurrence proved—Evidence not showing intention of appellants to assault or injured deceased—Pre­ vious enmity between parties existing—probability of chance meeting between parties available—Attribution of lalkara not relied—Both parties having grudge against each other—Injuries attributed to appellants caused with hatchet on non-vital parts of dece­ ased-Injuries simple - Injuries to injured prosecution witnesses showing intention of appellants to cause hurt and not beyond that— Conduct of appellants and resultant effect not culpable under S. 302/ 34P.P.C Conviction and sentence u/s. 302/34 P.P.C. set aside - AppeSlants No. I & 2, convicted u/s. 324/34 P.P.C. [Pp. 440,441.442JJ, B, C, D. E, Fd H (if) Pakistan Penal Code (XLV of I860)-.

S. 302/34 & 300(111)—-Murder-Offence-Conviction -Evidence- Appreciation of— AH appellants taking part in occurrence—Testi­ mony of injured eye witness supported by medical evidence—Appel­ lants armed with blunt weapons causing injuries on vital parts of deceased—Previous enmity existing between parties Conduct of appellant and resultant effect showing their intention to kill or cause such bodily injury having effect of causing death in ordinary course of nature—Appellants, held, cannot escape liability u/s. 302/ 4 PPC -From their conduct, held further, they can be said to have made up their mind at spot of moment to put deceased to death or to cause such bodily injury as was sufficient in ordinary course of nature to cause death —Conviction maintained in circumstances. [P. 442.443JJ, K, L & M (iii) Criminal Trial—

Evidence, appreciation of—Jusf -..-- Administration fof—Both par­ ties inimical and having grudge against each other— Held. When such situation arises, then best course open for safe administration of justice is to infer intention and its extent, from manner of attack, conduct of assailants and consequences which immediately follow. IP. 441K? Mian Mahmood Alt Kasuri, Mr. Z. A. Dasigur and Mr, Vatar Mahmood Kasuri, Advocates for Appellant. Mr. M, Sharif Suit, Advocate for Respondent, Dates af hearing : 21/22/23-2-1983. judgment Inayat (24), Nazir (32), Bashir Ahmad (35) and Mehdi Khan (27) sons of Khawaja caste Oujjar residents of Village Mall Tehsil and District Gujrat, were tried by Ch. Muhammad Amjad Khan Addl. Sessions Judge Oujrat, under sections 302/307/34 PPC for having caused the death of their first cousin Nazir son of Kajay Khan and for making a murderous assault on Msi. Khanum Bibi, Raj ay Khan father of the deceased and Muhammad Hanif, in furtherance of their common intention on 30-8-1975 at about degar wela. The learned Addl. Sessions Judge found them guilty under sections 302/324/323/34 PPC and sentenced them as follows :— Under section 302/34 PPC to life imprisonment and a fine of Rs. 2000 each or in default of payment of fine to undergo further one year's R.I. each. They were further directed to pay R. 2000 each toihe heirs of the deceased or in default thereof to suffer further one year's R. I. each. Under section 324/34 PPC to two years' R. I. each and. Under section 323/34 PPC to one year's R. I. each on two counts for causing simple injuries to Mat. Khartum Bibi and Rajay Khan. 2. They have filed the present appeal. 3. The matter was reported to the police by Muhammad Anwar, rea] brother of the deceased, on the same day at 7.30 p. m. F. I. R. Ex. P. H. was recorded by Tasaddaq Hussain S. I. (P. W, 13). It was stated in the F. I. R. by the complainant saat on 30-8-1975 at degar wela he along with his father Rajay Khan and brothers Nazir Ahmad (deceased) and Mohammad Hanif were returning to their village from their fields. Nazir Ahmad deceased and Muhammad Hanif, his brothers, were going ahead of him. When they reached near the field of one Nawab s/o Hakim situated at a distance of 100 karam towards South East from the village, all the appellants suddenly came there from the village side. Inayat and Nazir appellants were armed with hatchets whereas Mahdi and Bashir Ahmad appellants had solas with them. They raised a lalkara that they would not allow the complainant party to go alive. Then Bashir Ahmad appellant inflicted a sola blow on the left side of the face of Nazir deceased on receiving which he fell on the ground Thereupon Nazir appellant gave a hatchet blow on the right leg of the deceased, Inayat appellant inflicted a hatchet blow on the left leg. Mebdi appellant also gave sot a blows to the fallen deceased. Thereafter Inayat and Nazir appellants caused injuries to Muhammad Hanif P. W. with the hatchets on receiving of which the latter feil on the ground. Basides this Bashir Ahmad appellant inflicted a sola blow on his left eye. Rajay Khan P. W. then came forward to rescue him, Inayat appellant gave a hatchet blow on bis right leg, he fell on the ground and then Inayat appellant belaboured him with the wrong side of his hatchet. Bashir Ahmad appellant gave a sot a blow to Rajay Khan P. W. The complainant on account of his fear did not go near and continued raising the alarm which attracted Mst. Khasum Bibi P. W. who came running from the side of the village and on rgaching the spot fell on her brother Nazir deceased. She was given sot a blows by Bashir Ahmad and Mebdi appellants. Thereafter, all the appellants went to the village side. Nazir deceased became unconscious and after a while succumbed to the injuries at the spot. The occurrence was allegedly motivated by the fact that four/five months prior to the occurrence the complainant party injured Kua^-aja, the father of the appellants and a case under section 307 PPC was registered against the complainant party which was pending at the time of the occurrence. 4. After recording the F. I. R. Tasadduque Hussain S. I. proceeded to the spot. He prepared an injury statement Ex. P. I. and inquest report Ex. PJ of the deceased. Similarly, he prepared the injury statements of all thd injured P. Ws. He took into possession blood-stained earth from the spot vide memo Ex. P. N. on the following day /. e. 31-8-1975. He sent the dead body to the mortuary for post-mortem examination. The appellants were produced before him by their father on 2-9-i975, so he formally arrested them, [nayat and Nazir appellants produced hatchets P. 4 (which was blood-stained) and P. 5 which were taken into possession vide memos Ex. P. O. and P. Q. respectively. Similarly, appellants Mehdi Khan and Bashir Ahmad produced solas P. 6 and P. 7 which were taken into posses­ sion vide memos Ex. P. R. and Ex. P. S. 5. Dr. Soleman F. Elahi (P. W. 11) performed autopsy on the dead body of Nazir Ahmad deceased on 1-9-75 at 11.00 A. M. He found the following injuries on his person. (1) Multiple contused wounds total area 2 X |" x bone deep on the top of head. (2) A purplish black braise I" x i on front of left chest, (3) A haematoma £' x |" on the back of right side of bead. (4) An incised wound placed obliquely across back of right leg 1" below the calf. It measured 2' x 1" x bone deep. (5) An incised wound placed obliquely across back of left leg measuring 1 X |" X bone deep. In bis opinion death occurred on account of the laceration and contu­ sion of the brain as also intra-cranial haemorrhage and shock due to the head injury. The injuries were ante-rnortem. Injuries Nos. 1, 2, and 3 were caused with a blunt weapon whereas injuries Nos. 4 and 5 were the result of a sharp edged weapon. The probable time that elapsed between the injuries and death was about half an hour and that between death and post­ mortem was "within past 48 hours". Dr. Muhammad Sami Tariq (P. W. 9), on 31-8-1975 at 9.00 P. M. examined Muhammad Hanif P. W. and found six incised wounds on his left upper arm, left hip, left back chest, above the left )at : maleolus, below the lat: maleolus and on the left buttock ; one swelling on the dorsum of left hand and a laceration below the left little toe. These injuries were of 24 to 36 hours duration. He also examined Rajay Khan P. W. an the same day and found six injuries on his person. Injury No. 2 was later on declared as grievous while rest were simple. The injuries were caused within the duration of 24 to 36 hours. Lady Dr. Iqbal Javid (P. W. 4) on 1-9-1975 examined Msi. Khanum Bibi P, W. She was found to have suffered five injuries on different parts of her body. Injuries Nos. land 5 were kept under observation but later on declared as simple. The remaining injuries were also simple. 6. la support of its case the prosecution relied upon the following pieces of evidence :— (1) the ocular evidence furnished by Muhammad Hanif (P. W. 6), Rajay Khan (P W 8) Mst Khanum Bibi (P. W. 18), the injured witnesses, and Muhammad Anwar complainant (P. W. 34) ; (2) the evidence of motive given by the same set of persons who witnessed the occurrence : (3) the incriminating recoveries supporetd by Muhammad Anwar and Tasadduqe Hussain S. I. PWs. (4) the medical evidence. 7. The appellants when examined at the trial under section 342 Cr. P. C., denied all the allegations levelled against them including the recoveries at their instance. They stated that they baa been falsely involved in the case due to enmity and thai they were innocent, maintain­ ing ;— " ............. A she-donkey belonging to Nawab son of Hakam Aii was killed by Nazir deceased and Hanif P. W. as the same had damaged their crop. There was also ill-will between Khan and bis brother Nawab, the brothers-in-laws of our uncle Bigga Khan, on the purchase of a piece of land in village Malki, Some occurrence took place in which we did not participate and it is rumoured that the occurrence took place after the evening and we have been implicated on account of enmity." Only Nazir appellant produced Tajey Khan (D, W. 1) in h»s defence who deposed that he was father-in-law of the deceased. At night e he heard the alarm from the side of the field of Nawab and Allah "Diua. He went there and found the deceased lying unconscious. Rajay Khan P?/ was also present there. On his asking as to who had beaten Nazir deceased, Rajay Khan PW told him that since there was darkness, some unknown assailants had killed him. 8. The learned trial Judge by his detailed discussion in para No. 11 of his judgment, believed the ocular account of the occurrence, and the motive He discussed the evidence of recovery of the incriminating articles at the bottom of page 15 of his judgment which is to the effect :-— "The recoveries of solas, can however, not be taken as a corroboratory piece of evidence because according to the Investigating Officer only hatchet Ex. P. 4 produced by accused Inayat on 2-9-1975 was stained with blood and was made into a sealed pared The remaining weapons were not stained with blood. The report of the Serologist about the hatchet Ex. P. 4 is not positive as according to this report the blood had disintegrated, hence its origin could not be detected. It cannot thus be said with an amount of certainty that these very weapons were used in the commission of the offence". He, therefore, ruled out of consideration the recovery of weapons. The learned trial Judge however, sought corroboration from the medical evidence. In para No. 16 of his judgment Khan D. W. and rejected the same. he discussed the evidence f>f Tajay While rejecting the defence plea of Nazir appellant, the learned trial Judge concluded that the statement of Tajay Khan D. W. who was the father-in-law of the deceased that the occurrence took place at night time and he had reached the spot immediately on hearing the noise where he found Nazir lying injured and Rajey Khan P. W. present who even did not know who killed the deceised, was not convincing for the reasons that although he being the father-in-law of the deceased he was also the real uncle of the appjllams and, therefore, by the passage of time he had developed a soft corner for the appellants who were his real nephews. He had categorically denied that he had seen injuries on the persons of Rajey Khan, Muhammad Hanif and Mst Khanum Bibi P. Ws. He stood belied by the medical evidence as to the injuries the three P. Ws suffered and the deceased, that could in no way be expected that as many as three persons including a lady would suffer voluntarily such a large number of injuries merely to show that they were eye witnesses. 9. The learned counsel for the appellants has contended that all the appellants are real brothers, therefore, the possibility of false involvement of of some of them cannot be ruled out. Nuzir appellant has been falsely involved because the hatchet alleged to have been produced by him was not blood-stained. There is no evidence of pre-concert, at the most it can be described as a sudden occurrence. Rajay Khan PW did not men­ tion as to any embush or any way-laying by the appellants. Rajay Khan PW and father of the appellants Khawaja are real brothers and their being no blood-fued between the parties, so the intention to kill is not there. The offence committed is that of beating in view of which the liability at the most is that of an offence under section 325 PPC since no injury can be regarded as to fall under section 326 PPC. The offence as to the inju­ ries caused with a sharp edged weapon can be regarded as falling under section 324 PPC only and as the author of the head injury to the deceased which caused the death is not known, the injury alleged to have been caused on the left side of the face by Bashir Ahmad appellant finds no place in the medical examination, therefore, the appellants cannot be burdened with the liability under section 302/34 PPC specifically so when the intention to kill is not inferable from the evidence. The complainant was not there, otherwise he would also been injured alongwith the others. Mst. Khanam Bibi PW has not present during the occurrence, therefore, her statement as to the detail of the occurrence is liable to be excluded. 10. In reply the le rned counsel for the State has submitted that in view of the previous litigation between the parties under section 307 PPC the motive stands established. All the witnesses are natural witnesses because they were injured except the complainant. When the infliction of injuries was being continued Mst. Khanam Bibi PW was very much present. The intention to kill can be gathered from the nature of the weapons which at least two appellants namely Nazir and Inayat were carrying. Section 34 PPC is very much applicable in view of the opening of the attack and the consequences thereon. The attack was in fact pre-planned All the appellants had come together to accomplish that. From thecondttct. of all the appellants the question of individual liability does not arise The appellants have been rightly convicted and awarded sentences by the learned Additional Sessions Judge in view of which the appeal merits dis­ missal. 11. The first contention raised by the learned counsel for the appel­ lants cannot be regarded as a rule in the very appreciation of evidence that when real brothers are involved the possibility of false involvement ipso facto of some of them is always there. It depends upon the circumt-stances or facts appearing in the evidence from wbicb one can infer that whether the case is one of false involvement as to some of the accused. The evidence adduced by the prosecution has amply established that all the appellants participated in the occurrence and the injuries received by the deceased and the three injured are quite commensurate with the numaer of the appellants. The testimony of the witnesses who are injured druring the occurrence cannot be easily burshed aside. The account as rendered in the evidence by Muhammad Hanif and Rajay Khan PWs and the subsequent appearance of Mst Khanam Bibi as to her receiving of njuries is believable and it has been rightly relied upon by the learned trial Coun. To say that Nazir's involvement is false because the hatchet produced by him was not blood-stained does not appeal to the reason. [t can be very easily said that Nazir appellant was careful enough as to wash off his hatchet before he produced that to the police while Inayat appellant was not so, such a ground can hardly be treated as whighty, The contention of the learned counsel that the complainant was no present at the place of occurrence, had he been so he would not have escaped unhurt is not sustainable. The complainant though accompanied the injured has said that at the time of confrontation on account of fear he did not go near and went on raising the alarm. In the site-plan Ex. PF he is shown at a distance of fifteen karams from the occurrence. Rajey Khan and Mahammad Hanif P.Ws were at a distance of five and six karams respectively. All the injured unanimously say that the comp­ lainant accompanied them when they were returning from their fields. The complainant as to the main incidents of the occurrence has withstood the test of cross-examination. It is true that there is absence of bloodfued between the parties except the incident relaiing to Bagga and Khawaja, the father of the appellants or either of them about which a case under section 307 PPC was pending against the complainat party. The applicability of section 34 PPC in this case presents a little difficulty. Muhammad Anwar complainant deposed that on the day of occurrence he alongwijh his father and brothers including the deceased was coming to the village after doing their zamindara work in the fields aud when they reached near the land of one Nawab all the appellants confronted them. In the F. I. R. with which he was confronted he stated that all the appel­ lants had come up all of a sudden from the village side. 12. Muhammad Hanif PW deposed that on the fateful day he, bis tether and brothers Muhammad Anwar and Nazir deceased were coming to the village at degarwela after doing their zamindana work in the fields. When they reached the land of Nawab, all the appellants got up from the Bajra field where they were hiding. In his cross-examination he stated that the appellants were 5/6 karami from them when they saw them first. The appellants emerged suddenly and raised a lalkara and when he saw towards them he found them standing on the p&edandl in the Bajra field of Allah Ditta and Nawab. He further stated that he had not stated ih his examination-in-chief that the appellants had got up from tbe Bajra field but be bad stated that they had come out from the Bajra field. He was confronted with his statement in the examination-!n-chief. When he took up the position that he had stated in his statement before the police that the appellants -bad come out of the Bajra field, be was conf routed with his statement where it was not so recorded. He was again confronted with his statement under section 161 Cr. P. C. when he stated that lie had not stated to the police that tbe appellants bad come fram tbe village side, where it was so recorded. Rajey Khan p. W. stated «hat while returning when they reached near the land of Nawab appellants armed respectively with hatchets and sot as suddenly came forwaid. In D1 s cross-examination he statrd that the appellants were at a distance of 4/5 karams from them When he first saw them. He could not say if before his seeing them they were sitting or not. He had not stated in his statement ot the police that tbe appellants had come from the village side. He was also confronted with bis statement made to tbe police where it was record ed that the appellants had come from the village side. From the statement of these three eye-witnesses it can be deduced that they being conscious of something improved their statements at the trial. So the fact is fixed as that tbe appellants were coming from the village side. There is nothing to indicate in the evidence apart from tbe attribution of a lalkara that tbe appellants bad come with preparatio I and intention from the village side to assault the deceased and thnr 7 injured. As to the weapons which they were carrying nothing can bef inferred because such weapons the villagers usually possess or carry alongel with them and the observation of tbe learned Additional Sessions Judgethat the intention of the appellants was evident from the fact that they were armed with deadly weapons like hatchets and solas, cannot be well accommodated. The lalkara has been attributed to tbe appellants so as to be indicative of their common intention to kill. Such lalkaras are to be cautiously received because in criminal cases it has become a common use. The witnesses being in close relations could say anything to embellish ot strengthen the prosecution case and since there existeo a difference between the parties due to the case as mentioned above, the witnesses cannot be relied upon in this regard In verbatim. Had there been some independent witness deposing as the lalkara then that could have gone towards establishing a common intention. It has already been observed above that the appellants were coming from the village side but it is not known as to where they were going. It is quite likely that the parties came across with each other per chance. As to the attack what preceded that nothing can be said positively in the absence of an independen witness whether there took place an unpleasant verbal exchange which prompted the appellants to attack the P.Ws. and the deceased since they were inimical to each other and such an enmity can be construed both tbe ways. It is not true to say that only the appellants were aggrieved party, so as to have a motive against the deceased party. The case was already pending against the complainant party and a complaint filed by Rtyay Khan against Kbawaja, the father of the appellants, had already been rejected, so the witnesses and the deceased had also some grudge against the appellants and their father and uncle. When such a situation arises or the things come to such a pass then the best course open for the safe administration of justice is to infer the intention and its enxtent whether that is comon or individual, from the manner of attack, the conduct ot the assailants and the consequences which immediately follow. Now' viewed from this angle bad there been a common intention to kill all, and all the appellants behaved in furtherance of the common intention of all then Nazir and Inayat appellants who were carrying the hatchets would have accomplished that purpose very easily within the shortest possible time because the deceased and the injured were empty handed. Inayat and Nazir appellants are attributed one injury each having been caused with the hatchets on the non-vital parts of the deceased i.e. legs which njuries were returned as simple. Had there been an intention of Inayat and Nazir appellants to kill then they would have weiided their respective weapons with vigour and would have aimed at the vital parts of the body of the deceased. Taking their behaviour and the act of causing injuries also to Hanif and Rajey Khan P.Ws. they had decidedly formed an intention to cause hurt but not beyond that, therefore, their conduct viewed alongwith the resultant effect is not culpabje under section 302/34, PPC.. so the contention of the learned counsel for the State that the question of individual liability does not arise is therefore partly rejected. 14. As to the liability Mebdi and Bashir Ahmad appellants the matter stands on a different footing. They had given sota blows with Jull vigour on the vital part of the body of the deceased i.e. the head or the region near it. Bashir Ahmad appellant was the first 10 hit the deceased. He gave a vigorous dang blow on the left side of the face or above it which made the deceased to take a fall and apart from the blows of Inayat and Nazir appellants, Mehdi appellant is also attributed sota blows (complainant's statement per vernacular record) and the injuries on the head have been assessed as having been caused with btant weapons therefore it can be fixed without any difficulty that Bashir Ahmad and Mehdi Khan accused who were carrying sotax had caused the injuries on the vital part of the body which contributed towards the death lof the deceased, As to the contention of the learned counsel that the medical evidence revealed no injury on the left side of the face of the eceased, therefore, no such injury was caused, the inquest report can be referred to in this behalf wherein this injury is mentioned in the form of a wound and if this injury has not been mentioned in the post-mortem report that would not mean that no such blow was given because it finds its place the other way round as a resultant effect when the doctor talks about the multiple fissured fracture seen on the left parietal and left temporal bone with a depression of bone over the left parietal region, to the exact place of the injury the witnesses cannot be expected to observe an injury with a rectitude when they are themselves in a dangerous plight The contention of the learned counsel for the appellants that the ^author of the head injury is not known, cannot be given much importance for the reason that the first sota blow was attributed to Bashir Ahmad appellant on the left side of the face and the latter sota blows to Mehdi Khan, so on the top of the head the injury was inferably ceased by no body else than Mehdi Khan appellant. Injury No. 2 on front of the left side of the chest and injury No. 3 on the back of the right side of head were also stated in the post-mortem report to have been caused by blunt weapons though it was expressed by the doctor in the evidence that both the aforesaid lujuries could be caused by a fall on ,a hard substance. In the absence of any thing in the evidence as to the hard surface or any substance such an opinion cannot be entertained. The parties met on the kacha path adjoining the fields. So these injuries can be regarded as baring been caused with a blunt weapon. From their conduct by hitting on the vital parts of the deceased it is inferable that they had, at least, the way they behaved formed an intention to kill or cause such bodily injury which had the effect of causing death in the ordinary course of nature. Even both these appellants can be attributed the knowledge that by their blows on the vital part of the deceased the death could be caused. The observation of the doctor who conduct^ the post-mortem examination that the scalp was torn under the seat of injury No. !, there was eccymosis of all the layers of the scalp ; maltipls fishured fractures were seen across the frontal, right parietal, left temporal bone with depression of bone over the left parietal region ; the sagital sutures were seen opened in the region of bregma; the layers of membranes were seen filled with dark blood due to rupture of sinuses ; the surface of the brain under right parietal bone was lacerated and contused ; cerebral vessels were seen torn and his opinion that the death occurred on acconnt of laceration, contusion of the brain, tntra-cranial haemorrhage and shock due to the head injury, sufficiently lends support to the fact that the death was not only caused by injury No. 1 (as expressed by the doctor) but al«» by an injury attributed to Bashir Ahmad appellant the resultant effect of which is mentioned in the report as multiple fishured fractures seen on the left parietal and left temporal bone with a depression The doctor has allocated the entire damage to injury No. 1, but in view of the evidence the damage as said above is relatable to the other to the other injury also inflicted on the left .side of the race or higher than that. Since both the appellants were weilding blunt weapons, therefore, they cannot escape the liability under section 302/34, P.P.C. because from their conduct they can be said to have contrastedly made up their mind at the spur of the moment to put the deceased to death or to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. 15. The defence taken up by the appellants is altogether fantastic and noefirm foundation for that was laid anywhere. The statement of D.W. i Tajey Khan on the face of it appears as favouring the appellants out of the way with an unbelievable account. The defence has been rightly rejected by the learned Additional Sessions Judge and as to the injuries caused by the appellants variously, P.Ws. Muhammad Hanif and Rajay Khan have been rightly believed and as to Mst. Khanam Bibi P.W. it can be safely said that her first portion of the evidence wherein she stated that she witnessed the appellants causing injuries, in the circum­ stances, is aot believable because she was attracted by the cries and that took her some time to cover the distance to the place of occurrence but it has been established that when she reached by teat time the appellants had not left th« place and she was also injured when she had fallen bewailing on heir deceased brother. 16. As a result of the above discussion this appeal is partly accepted. The conviction and sentences of Nazir and Inayat appellants under section 302/PJ4, P.P.C. are set aside and they are convicted under sec­ tion 302/34. P.P.C. for having caused simple injuries with sharp-edged weapons to the deceased. They are. therefore, sentenced to two years' R.I. each. The conviction and sentences of Bashir Ahmad and Mehdi appellants under section 302/34, P.P.C. ate maintained. The conviction and sentence of all the appellants under section 324/34, P.P.C. for Appeal partly accepted.

PLJ 1983 CR444 PLJ 1983 CR444 Present: muhammad rapiq tarar, J SHAHMAND—Petitioner versus THE STATE—Respondent Criminal Misc. No. 455—B/1983, decided on 16-5-1983. (!) Bail—

Grant of— Held: Mere delay per se not to be sufficient for grant of bail—Criminal Procedure Code (V of 1898)—Ss. 497 & 498. [P. 445] (ii) Bail—

Investigating officer—Opinion of—Relevancy of—Held: Finding of investigating officer though relevant not to be binding—Criminal Procedure Code (V of 1898)—Ss. 497 & 49k [P. 445]5 (ill) Criminal Procedore Cede (V of 1898)—

Ss. 497 & 498—Bail—Grant of—Petitioner named in FIR and specific role attributed to him— Held: Petitioner haying allegedly fired shot on deceased hitting his left shoulder and having also been challaned along with other accused, bail not to be allowed. [P. 445]C Mr, Muhammad Hussain Malik. Advocate for the Petitioner. Mr. Ghulam Nabi Bhatti, Advocate for the Complainant. •Mr. Muhammad Iqbal. Advocate for the State. A. S. 1. Muhammad Idrees. with police record. Date of hearing : 16-5-1983. order Shabamand petitioner has moved this petition for bail in a case registered against him and others under sections 148 and 302/149 PPC. The allegations are that on 20th June 1982 at 7 p.m. Muhammad Sharif deceased and his wife Mst. Rashida were present at a bus-stand on Multan Road, Lahore, in order to see off Muhammad Nazir PW who had to board a bus for his village. The petitioner and his co-accused Niamat armed with 12 bore pistols and Shaukat, Arshad and Rehmat Ali armed with Khan jars who were present at the petrol pump, raised Lalkaras. hurled filthy abuses and Niamat fired a shot at Muhammad Nazir hitting his right chin. Shahamand petitioner also fired a shot but it missed. Muhammad Nazir hurriedly got into the bus while Muhammad Sharif deceased and Mst. Rashida ran towards their house. They were chased by all the accused and when they reached near their house, Shabamand fired a shot hitting Muhammad Sharif on the left shoulder, as a result of which he fell to the ground. Then co-accused Niamat fired a shot hitting his left arm and arm-pit. He was taken to Mayo Hospital , Lahore , where he succumbed to his injuries soon after. The motive for the offence was that eleven days prior to the occur­ rence co-accused Niamat enticed away Afst. Hamida, daughter of Ali Muhammad complainant. He kept her with him for eight days and three days prior to the occurrence left her at Pattoki Adda. Later on she told her relatives that Niamat had forcibly removed her ornaments. The complainant asked Niamat and his relatives for returning the ornaments but they declined, as a result of which the relations between the parties got strained. The learned counsel for the petitioner contends that the FIR was lodged 4£ hours after the occurrence and this delay has not been explained. It is further submitted that the petitioner was declared innocent by two investigating agencies and he has been falsely implicated due to his relation­ ship with co-accused Niamat. The learned counsel for the complainant and the State, on the other hand, contend that the petitioner has been named in the FIR. a specific role has been attribured to him and he has been chailaned along with the other accused, therefore, no ground for bail is made out. 3. I have gone through the relevant material. The occurrence took place at 7 p.m. and the statement of the complainant, which forms the basis of formal FIR, was recorded in Mayo Hospital at 11,30 p.m. After the occurrence, the deceased was carried to Mayo Hospital. The comp­ lainant himself had suffered a firearm injury, therefore, he was not expect-! ed to rush to the police station soon after the occurrence. In any case.U the mere delay is not per se sufficient for the grant of bail. The petitioner] was found innocent during the investigation by the ASP. The record, however, shows that he arrived at this finding in view of the statements made by six persons. The submission of the learned counsel for the complainant, that all of them belong to the bradari of the petitioner, finds support from the record. The finding of the investigating officer is relevant! but not binding. The petitioner is named in the FIR and a specific role 0 has been attributed to him. He is alleged to have fired a shot on the deceased hitting his left shoulder and he has been chailaned along with c other accused. In the circumstances, I do not consider it a fit case foi the grant of bail. The petition is dismissed. (MIQ) Bail refused.

P L J 1983 CR446 P L J 1983 CR446 Present : Z. C, valiani, J ABDUL RASUL and Another—Petitioners versus THE STATE and Another—Respondents Criminal Rev. No. 163 of 1982, heard on 2-3-1983. (i) Criminal Procedure Code (V of 1898)-

S. 145—Immovable property—Disputes as to— Held: Existence of dispute between parties in respect of tenancy and of possession of pre­ mises by itself not to attract provisions of S. 145 of Cr. P.C. unless such dispute be likely to lead to breach of peace between parties. [P. 447P (ii) Criminal Procedure Code (V of 1898)—

Ss. 145 & 561-A—Disputes as to immovable property—Proceedings under S. 145—Quashment of—Evidence not led by parties (for decision) on question of actual possession of disputed premises on relevant dates—Even no competent civil court passing any order regarding possession of such premises in dispute— Held: Evidence having not been adduced by both parties, proceedings under S. 145 not to be quashed. [P. 448] B Mr. Fazl-e-Ghant, Advocate fot Appellant. Mr. Syed Naqi Mirza, Advocate for Respondent, Date of hearing; 2-3-1983. judgment The petitioners abovenamed have filed the above petition for quashment of proceedings pending against them u/s. 145 Cr. P.C in the Court of Assistant Commissioner and S.D.M. Garden Karachi, vide Case No. 609/82 as well as for quashment of the attachment order dated 19th September, 1982 passed by the said court, on the facts and grounds men­ tioned in the memo of above petition. The learned advocate for the petitioners in support of the above petition submitted as under :— (a) That there is a civil litigation between the parties in respect of the business and the premises in question in the shape of suit No. 2966/81, 1185/82 and as such the proceedings in question have been filed malafidely. (b) That there was nothing on record of the learned trial court to warrant taking cognizance of the proceedings in question, as no instance of alleged breach of peace have been cited in the com­ plaint and as such the learned trial court has wrongly assumed jurisdiction. (c) That the impugned order for attachment of the property passed by the learned trial court cannot legally be sustained, both on facts and on law and as such is liable to be quashed. (d) That the respondent No. 2 had,initiated these proceedings simply in order to harass and coerce the petitioners in respect of the civil litigation initiated by him for a compromise and as such the said proceedings have been filed malafidely and cannot be maintained. In support of this the contention of the learned advocate for the petitioners relied upon cases reported in 1983 P. Cr. L J p. 43,47 and 129 and 1983 Pak. Cr. L J p. 253. The learned advocate appearing for the respondent No. 2 on the other hand submitted, that the impugned order for attachment of the premises in question is legal and since there was likelihood of breach of peace, which is evident from telegrams exchanged between the parties, the learned trial court was fully justified in passing such orders, pending further inquiry under the provisions of section 145 Cr. P.C. The learned advocate for the respondent farther submitted that the proceedings in question have nothing to do with the civil suit in question, which were filed nearly one year ago before the incident, which led to the filing of the present proceedings and the said proceedings were initiated bonafidely as the respondent No. 2 was forcibly ejected and was threatened with dire consequences by the peti­ tioners. In support of this contention the learned advocate for the res­ pondent No. 2 relied upon case reported in PLD 1982 Kar. 967 and submitted that in the interest of justice the learned trial court may be permitted to record the evidence and pass necessary orders under the pro­ visions of section 145 (4) Cr. P.C. and the proceedings in question ought not to be quashed. However, the learned advocate for respondent No. 2. submitted that directions may be given to the learned trial court to dispose of the complaint in question within reasonable time, I have carefully considered the above submissions made by the learned advocate before me and have gone through the impugned order as well as al, the documents filed with the above petition and produced in court today, by the learned advocates before me. f have also gone through the cases cited by the learned advocate before me. Both the parties are closely related to each other. It is admitted position, that civil litigation between the parties in respect of partnership business of M/S Prestige Tiles is pending. It is admitted position, that in the civil proceedings in question, possession of the premises is not speci­ fically in question, although receivership application for taking over ail the assets and properties of M/S Prestige Tiles, for purposes of winding up and accounts etc. is still pending disposal and as such no order of Civil Court is in existence about the premises in question. The partnership deed, which is not disputed by the respondent No. 2 and photo copy of which was produced in Court for perusal clearly shows, that tenancy of pre­ mises as well as godowns etc belonging to M/S Prestige Tiles shall belong to all partners, on dissolution of the firm, inspite of the fact, that original tenancy of the disputed premises was in exclusive name of respondent No. 2, who now claims that the same does not belong to partnership firm. In view of these facts, there exists dispute between petitioners and respon­ dent No. 2, in respect of the tenancy and possession of the permission in question. However such dispute by itself would not attract the provisions of section 145 Cr. P.C. unless such dispute is likely to lead to breach of peace between the parties. In the present case, respondent No. 2, on the basis of telegram dated 9th September, original produced in court, which is kept on file, filed the present proceedings under section 145 Cr. P.C. in which impugned orders dated 19/9/82. were passed by learned Assistant Commissioner SDM Garden, for sealing of the said premises and premises were conseq­ uently sealed. The learned Advocate for the petitioners submitted, that no dispute, which could have attracted the sealing of premises, exists between the parties and as such sealing of the premises, without passing of orders u/s. 145 (4) Cr. P.C. after recording of evidence cannot be sustained. In support of this the learned advocate for petitioner relied upon cases reported in 1983 Pak. Cr. L J p. 47, 1972 Pak. Cr. L J p. 671, PU 1974 Cr. C. (Lab.) p. 5 and PLD 1964 p. 289. The learned Advocate for respondent No. 2, on the other hand sub­ mitted, that telegram dated 9/9/82 sent by petitioners clearly shows, that there exists a dispute likely to lead to breach of peace between parties, in respect of the possession of the disputed premises and consequently learned trial court was fully justified in passing impugned order dated 19/9/1982: In support of this contention the learned Advocate for respondent No. 2 relied upon case reported in 1982 Kar. p. 967 and some other cases, as well as on the statements of P. Ws. recorded before the learned trial court. I have carefully considered the above submissions made by the learned advocates before me and have gone through the documents filed and pro­ duced in Court before me as well as impugned order dated 19-9-82 and the cases cited by the learned advocates before me. The question, which party was in actual possession of the disputed premises on the day of sealing and/or two months prior to the filing of pro­ ceedings u/s. 145Cr. P.C. and was forcibly ejected, cannot be decided without leading of evidence by both the parties, irrespective of the fact, whether tenancy of the disputed premise belongs exclusively to responden B No. 2 or to the partnership firm of M/S Prestige Tiles, in view of admitte original partnership deed of the firm of M/S Prestige Tiles. Since till t< day no orders have been passed by competent civil court regarding posse sion of the disputed premises, this question will have to be decided

proceedings in question and as such the said proceedings cannot be <i</ n at this stage, when no evidence has been adduced by both the parties, In view of my above conclusion, the only question which now ) consideration is whether impugned order dated 19/9/1982 was just not. For this purpose, if the learned trial court came to conclusi" emergency existed to avoid breach of peace, it could have passed order, pending final orders u/s. 145 (4) Cr. P.C. Keeping in view of the complaint filed by respondent No. 2 u/s. 145 Cr. P.C, >-• . statement of P.W. Noor Muhammad and Syed Mumtaz and respotu • No. 2 recorded by learned trial court, before passing of impugned oruer dated 19-9-1982, I am of the opinion, that passing of the impugned ordei was not at all justified, as on the basis of respondent No. 2's own statement, he did avoid and would avoid breach of peace, to save family honour. Therefore I partially allow the above application and set aside im­ pugned order dated 19-9-1982 for sealing of the premises passed by the learned trial court. However, I direct the learned trial court to recoro evidence and hold inquiry as envisaged by the provisions of section 145 Cr. P.C. and pass appropriate orders u/s, 145 (4) Cr. P.C. as he may deem fit, in the light of the evidence that may be leed by both the parties, within one month from the receipt of the copy of this order. However. I would like to make clear, that this judgment shall in no way debar competent civil court to pass any orders in respect of posses­ sion of the disputed premises, in any civil litigation now pending and/or which may be instituted by either party hereinafter,'in respect of the dis­ puted premises and its possession directly and/or indirectly nor it shall prevent the parties from refermg their disputes for settlement to arbitra­ tion, in the interest of family prestige and honour. In order to serve end? of justice, I restrain the petitioners from alienating and/or parting with thr possession of the disputed premises to any third party pending final dis posal of 145 Cr. P.C. proceedings. (CMS) Pttition partly allowed

PLJ 1983 FSC 1 PLJ 1983 FSC 1 (Original Jurisdiction) Present : aftab hussain, C.J., zahoorul haq & malik ghulam ali. JJ ANSAR BURNEY—Petitioner versus FEDERATION OF PAKISTAN and Others— Respondent Shariat Petition No. K-4 of 1982. decided on 10-8-1982. (i) Constitution of Pakistan (1973)—

Art. 203-D—Judges and Magistrates—Appointment of women as- Challenge to—Repugnancy to Injunctions of Islam —Petitioner challenging appointment of women as Judges and Magistrates inter alia on ground of evidence of woman being half of that of man and her share in property being equal to half of that of her brother, judgment of two ladies only to be equivalent to that of a male—//e/d : Concept that at least two female judges to be competent to decide case not \o be accepted as in case of giving effect to such concept no male Qazi sitting alone to decide civil or criminal .case— Held further: Number of Qazis deciding particular case if to correspond number of witnesses required to prove it, Qazi sitting alone to be rarely allowed to act as Judge. [P.4] A (ii) Constitution of Pakistan (1973)—

Art. 203-D—Judges and Magistrates—Appointment of women as— Challenge to—Repugnancy to Injunctions of Islam—Petitioner challenging appointment of women as Judges and Magistrates inter alia on ground that duties of Qazis during period of Holy Prophet and his rightful com­panion having never been entrusted to female, same to be violation of Injunctions of Islam— Held : There being no specific and direct injunc­ tion in Qjran or Sunnah, women not to be excluded from appointment as Qazis merely because Holy Prophet or his four successive Caliphs appointed no women as <uc\ role being ihat not prohibited by Quran and Sunnah to be permitted. [Pp. 4 & 5 ] B & C Hedaya (Hamilton's) P. 334 ; Shrh Waqays, P. 62 ; Durrul Mubhtar, Vol. Ill, P. 253 : Jurisprudence by Abdul Rahim, P. 389: Administration of Justice by Mohammadullah S. Jung, P. 9 ; Islam Ka Ni:am-i-Adalat by Mahmud bi;i Mohemmad. P. !69 : Ehkam ul Sultanla by Mawardi (Urdu) P. 117 ; Philosophy of Jurisprudence by Subh Mahmasani, P. 180 & Kiiabul Qaza in Fata-ul-Bari. Vol. 13, P. 56 re/, (Hi) Islamic Law & Jurisprudence—

Quran and Sunnah—Interpreiation of—"kule of— Held: What is not prohibited by Quran and Sunnah to be permitted and burden of proof about anything prohibited to be on person claiming to be so. [P. 5 ] B Alashbahu Wai ffazair by Ibn Nujaim, P. 66 ref. (iv) Islamic Law & Jurisprudence— —Woman—Status of in Islam— Held: Woman and man both to be placed on same footing in economic idependence, .property rights and legal process— Held further: Women to be competent in Islamic Society to follow my !.^: timate profession, keep her earnings, inherit property and dispoes of her belongings at will. [P.9] D Holy Quran 4:32 & The Age of Faith by Will Dujant, P. 180 ref . (t) Islamic Law & Jurisprudence—

Maintenance of wives—Duty of husband— Held : Husband to be under obligation :o provide maintenance for his wife (even if wealthy enough or wealthier than her husband) keeping in view his own means as well as status of woman in society. [P. 10] £ (h) Islamic Law & Jurisprudence—

Quran—Interpreiation of—Masculine gender—Use of— Held: Urtlesa there be something repugnant in subject or context, use of masculine gender also to include feminine, [p. 13] F Holy Quran 10 : 27 ; 18 : 88 & 56 : 24 ref. (rii) Islamic Law & Jurisprudence—

Raju— D:>cirine of—Applicability of— Held : Muslim to be duty bound to accept truth and to change and retract his earlier view. [P. 15] C (viii) Islamic Law & Jurisprudence—

Woman—Status of—Appointment as Head of State— Held : Woman to be competem to be appointed as Head of State in democratic govern­ ment. [P. 15] H Holy Quran 27 : 32 & Imdad ul Fatwa, Vol. V, Pp. 91-93 ref. (ix) Islamic Law & Jurisprudence—

TagMfb— Doctrine of—Applicability —Held : Masculine being more -often used by way of Tag'ilib and by habit to describe something applying to members of masculine as well '.-as feminine ge.ider, unless there be some repugnance in context, ma'e to include female also. [P. 17] J Elaul Sunan— Vol. XV, P. 26 ref. (x) Islamic Law & Jurisprudence —

Woman—Appearance as witness inman ers of Hadood and Oisas — Held : . View thai women not to be competent to appear as witness in cases of Hadood and Q,lsas being based on neither Quran nor on any precedent of Holy Prophe. rsiu^ing to accept evidence of women in such matters to he only juristic one. [P. 20] K Al Mohalla by Ibn ij:>.zana. Vol. VI, P. 430 ref. (xi) Islamic Law & Jurisprudence— .

Women—Evidence by—Admissibility of— Held : Admission and oath in Han being substitutes for evidence and admission of woman being fully admissible in matters of Hadood and Qisas andoatiis being admissible in matters of lion, other forms of evidence including oral testimony not to be inadmissible. [Pp. 21 & 22] L Holy Quran : 24 : 6, 8 & 9 & Ainul Hedays ; Vol. 3, P. 283 ref. (xii) Islamic Law & Jurisprudence— ——Woman—Status of— Maintenance of children—Responsibiliiy of—Inheritence—Principle of—Philosophy behind— Held : Woman to have exclusive v, right of disposal over her property inherited or earned by her without having any financial liability of maintaining even her children while husban.d to be bound to maintain her and her children—Held further : Share given to male in inheritance to be in proportion to his respnosibilities and not due to any superiority over female. [P. 22] M (xiii) Islamic Law & Jurisprudence—

Qazi —Appointment of— Held: Any one having necessary knowledge of law and training in that field to be competent to act as Qazi —Held further: Functions of Qazi and witness being quite different admissibility 1 of evidence to be no criterion for apponitment as Qazi. [P. 22] N (xiv) Islamic Law & Jurisprudence—

Justice—Concept of— Adi or Qlst —Meaning of— Held : Each Muslim to be just and equitable in his dealings with his spouse, parents, children,neighbourers, relatives, friends, fellow Muslims and all others—Held further: Concept of justice in deciding dispute between parties or in decid­ ing criminal cases to be only part of Adi or Qisi. [P. 23] 0 (xv) Islamic Law & Jurisprudence—

Judges and Magistrates—Appointment of woman as—Objection u Held : There being no prohibition in Quran or Hadith about judgeship of women or any restriction limiting functions of deciding disputes to men only, objection to appointment of women judicial officers to haVe no merit. [P. 23] P (xvi) Islamic Law & Jurisprudence—

Judges and Magistrates— Appointment of women as—Imposition of conditions— Held: No conditions to be'imposed on appointment of woman Qazi [P. 24] Q Islam Ka Nizam-e-Adalat by Dr. Tanzilur Rthman, P. 4! rej. Mr.Ansar Burney. Petitioner (in person) with Mr. M A. Khali! Siddiqi. and Mr. G. M. Saleem, Advocates for Petitioner Mr. Sharif-ud-Din Pirzada, Attorney General of Pakistan, Mr. Khalid M. Isltaq, Advocate aJongwiih Mr. Ishrat Ali Khan, Advocate for APWA, Mr. Anwar Ahmad Qadri, Advocate for Federal Government, Mrs. Rashida Patel, Vice Chairman, APWA and President Women Lawyers Association, Karachi and Mrs. Salima Nasir-ud Dii; AJvoca'o for Respondents. Dates of hearing: 31-7-1982, 1/5/8/9 & 1U-8-1982. judgment Aftab Hassain, C.J.—This petition has been filed to challenge the appointment .of women as judges or magistrates for the following reasons :— (1) They discharge their functions of Qazi without observing pardah which is a ciear violation of the Injunctions of Islam (2) During the period of the Holy Prophet and his rightful companions the duties of Qaza were never en'rusted to females since it appears to be a violation of the Injunctions of Islam. (3) According to Muslim Law ihc evide ce of a woman is half of that of a man and her share in the inheritance is equal to half of that of her brother. The judgment of two ladies only can be equivalent to that of a male. (4) The ladies do not fulfil :he qualification of Qazi nrcording to the established principles of Muhammaoan Jurisprudence 2. This petition was fixed ai Karachi for preliminary hcaiiiig but since the Attorney Genera! as well as other lawyers wished to be heard, we considered it advisable to hear full argument fiom the learned counsel of the petitioner as well as to give a hearing besides the Attorney General of Pakistan to all those who wished to be heaid The case was thus argued by Mr. G.M. Saleem for ;he petitioner, Mr. Attorney General, Mr. Anwar Hussain Qadri. Mr. Khalid M. Ishaq , Mrs. Saleema Nasiruddin and Mrs. Rashida Patel. Advocaies. After hearing the case, ihe petition was dismissed by a short order for detailed reasons to be given laier. 3. Some of the points need not de am us. It wa- Conceded before us that there is no law or custom or usage naving M excluding women 1'n.m appointment as Qazis that the Holy Prophet or his four successive Caiiphs did not appoint any woman as such since the rulef is that what is not prohibited by the Holy Quran and Sunnah is nermittedlB and the burden of proof about anything being prohibited is on lit personj who claims it to be so. This is apparent from the maxim •— -V^IL^-i)! j J-^Jl JJb j± (Alashbabu wal Nazair by Ibn Nujaim P. 66). We have to see whether there is any express or even implied restriction on / the appointment of a female Qazi. If no such restriction can be inferred, the appointment will be legal in Shariat. 4. It was not denied that there is no specific and direct Injunction inL, the Quran or the Sunnah of the Holy Prophet concerning this matter. There! are only the conflicting opinions of the Jurists. The view of Imam Abu Hanifa is that the authority of a Kazi is not valid, unless he possesses the qualifications necessary for m witness. Hedaya (Hamilton's) P. 334. This opinion excludes from its ambit ail cases of Hudood and Qlsas which in his Fiqh do not admit of evidence of women. According to Imam Ibn Jar er Al-Tabri she can be appointed as Qazi in all matters. Hedaya by Hamilton P. 334, Shark Waqaya P. 62, Durrul Mukhtar, Vol. Ill, P. 253. Juris­ prudence by Abdul Rahim, P. 389, Administration of Justice by Alhaj -4 Mobamma.duHah S. Jung, P. 9, Islam Ka Nizam-l-Adal by Mahmud bin - Mohammad, P. 169, Ehkam-ul-Sultanla by Mawardi (Urdu) P. 117, Phi­losophy of Jurisprudence by Subfa Mahmasani, P. 180. According to 'Kltabul Kaza' in Fateh-ul-Barf, Vol. 13, P. 56, some of the Malakees also favour the opinion of Ibne Jareer, See also Mohalla by Ibn-e-Hazm, Vol. 7, P. 430. Ibne Hazam also supports this view as his opinion is that a female can be a head of the Siaie and Hazrat Uraar had appointed a lady as the Inspectress (l-) of ihe market (Ibid), Ibn-c-Arabi does not accept the correctness cf the Hadiih about appointment of a woman by Hazrai Umar to supervise the markei. 5. The learned counsel for ihe peuiioner relied upon the view of 'Imam Sha'fai aiu! hnum Ahmad bm Hanbal who held to the contrary on this proposiiion. He furiher submitted that according to a tradition correctness of which is undisputed ihe Holy Prophet said : >-'.? f>» jJuij ^J • »'j\ j^' (There will be no blessings or prosperity for a nation which is ruled by a woman). He further relied upon the Quranic verse O>-«l.>' O^-^'" UJl Jp. " which, as will be seen, has been interpreted mainly in proof of the suzerainty of men over the women and bysome in-favour of a man being only a provider for woman. Some traditions were also quoted to which reference will be made at ihe proper stage. He further quoted the verses from which he inferred Injunctions about the seclusion of women and their appearance in public only wiih their faces veiled. 6. The learned Attorney General first made it clear thai he was not presenting the Governments case as such but was appearing only for the assistance of the Court in this controversial maucr. He referred to the views given by the Council of Islamic Ideology on a query by the Govern­ ment about the legality of appointment <>! woman as Qa?i The Council said in its reply that a lady can be aopoimed a Qazi in ail family matters subject to her. being over 40 years of age and subject to the condition of observance of purdah. He cited a quotation fram"lslami Nizam-i-Adalat" by Dr. Tanzilur Rehman, (now Chairman of ibe Islamic Ideology Council) page 41, which refers to the opinion of Imam Abu Hanifa in regard to the legality of appointment of a female Qazi in all matters in which her evidence is admissible with which the author agreed. He also referred to the opinion of Ibne Jarir who does not impose any restriction of admissibility of evidence and is of the view that a woman can be appointed a Qazi in all matters. As regards the opinion to the contrary held by Shafies, Hamblies and some Malikies he submitted that this view is based upon the above tradition in which the Holy Prophet condemned the appointment of a female ruler. But he argued that the tradition pertained to the then ruler of Iran and did not lay down the law that the women are disqualified from being elected or appointed rulers. 7. In this connection the learned Attorney General referred to "Mawahlbur Rehmanid" and the Fatawa of some Ulema including Maulana Maudoodi issued in favour of Miss Faiima Jinah's candidature for election to the Presidentship of Pakistan. He submitted that the basis of these Fatawa are the opinions of distinguished scholars like Maulana Ashraf Ali Thanvi and Syed Sulaiman Nadvi. 8. The Attorney General submitted that he had not been able to find in books on Sharia any limitation as regards age, purdah or that female judges can be appointed only for deciding cases concerning family matters. He said that even as regards the last point the Hanafi view was much more liberal. He also cited a phrase written by Syed Suleman Na'dvi in his book «"»£•> U o_a~" page 292 that whenever the companions of the Holy Prophet differed on any matter, they referred the case to the Court of Hazrat Aisha. He said that the use of the word "oJI^-" is important since it would show their intention that they wanted a judgment from her. 9. He referred to the book on "purdah" (English) by Maulana Maudoodi in which he expressed his opinion that ihe rule of purdah could be relaxed in some cases. He read extensively from the "The Introduction to Islam" by Dr. Hamidullah who argued after referring to the obligation of a woman as stated in the Quran that when the jurists admit the possi­ bility of their being appointed as judges of tribunals there is no reason why they should not collaborate with men to earn their livelihood and to develop their talents 10. Mr. Anwar Hussain Qadri referred mostly to verses from the Holy Quran and particularly placed reliance on verse 58 of Chapter IV :

61 u-UI t (and if ye judge between mankind, then ye judge justly). He submitted that this verse is general in scope and the injunction is directed to both men and women and proves the legality of appointment of members of that sex as Qazis. He also submitted that the mother of Muqtadar Billah pre­ sided over the High Court of Appeal. 11. Mr. Khalid M. Ishaq submitted that it was not correct that the evidence of a woman is half. of fhe evidence of a male. Referring to verse 6 of Surah Noor aoout /Jan, he submitted that it is clear that the oath of a woman is equal to the testimony of one witness. He referred to a judgment of Qazi Shuraih, in "Akhharul Quz~at" by Wakeei, Vol. III. page 359 in which he decided a matter on the solitary evidence of a lady because the plaimiff and the defendant both males signified their assent to this procedure. He argued that the phrase "U-:Jl ^ Oj-'y» J^v"" was used in the Holy Quran in order to lay stress upon the responsibility of a male to.provide for the female. He quoted extensively from different books.. Similar arguments were given by Mrs. Salcema Nasiruddin and Mrs. Rashida Patel. 12. It has already bcen.observed that the question of purdah is not relevant since there is no law, custom or usage enforceable by law in regard to it. However, in passing, It may be stated that according to Imam Abu Hanifa, Imam Malik, Imam Shafai and Imam Ahmad bin Hambal, the face and hands of a woman are exempted from concealment. This opinion is also attributed in Tlrmzi to Ibne Abbas on a report from Saeed bin ubair. According to a report from Atta, Hazrat Aisha in addition to face arid hands also exempted feet from being covered. (Tafseer-Mazhari, Vol. 8, P. 326). 13. There is a Hadees of the Holy Prophet that a lady of th tribe named Akhsam came to the Prophet in the year of Hajjat-ul- Widaa and enquired whether she could perform Haj on behalf of her faiher who was too old to ride an animal. The Prophet answered in the affirmative. Ibn Abbas who reported this tradition said that Fazal who was riding behind the Prophet gazed at the lady who was looking towards him. The Prophet turned Fazal's face to another side. 14. Ibn Qattan inferred from this tradition that since the Prophet did not order that woman to veil or cover her face it follows lhat it is not pro­ hibited 10 see if there be no apprehension of mischief by enchantment. Tafster-t-Mazharf. Vol. 8, P. 325. 15. The only question which remains to be considered is the legiti­ macy «>f appointment of a woman Qazi according to the Holy Quran and the Sunnah of the Holy Prophet (PBH). . 16. The first point is about the interpretation of verse 34 of Surah Msa (Chapter IV), "l~iJIJ 6>l>» J^»" (Men are incharge of women). This verse furnishes the main plank for the argument in favour of women being subordinate to men. In some of the commentaries the word "flj?" (Qawwam) is used in the sense of a ruler or master or a person having an authority, for example - 'j^l <_ijU." Maarufyk-ul-Quran by Mufti Mohammad Shafi. In "JU..J1 ^jf (Rooh-ul-Maani) by Aloosi Vol, V page 21 the position of man is of "«>-l_p! oi"il>J!" I.e. sovereign power over the sub­ ject. The word "•V^/j" (sovereign power) in respect of women is also used in "jl^JI js-iJ" (Tafseerul Manar). Maulana Fateh Muhammad of Julundhar translated the said verse in the same meaning (uy ^ ^JJ k,L.. • ji Ojfjj »j) i.e. they are rulers and have absolute sovereignty over them. 17. In other commentaries, however, the word "(•'.>" (Qawwtan) is interpreted as a guardian or head of the family. (See Tadabbarul Quran by Mauiana Atnin Ahsan Islahi) Maulana Abu Kalam Azad translated the word as "\~j» j£ jj\ >\jlj~" ( a manager and a ruler) but it appears from bis commentary that he has used the word "«Uo-'' (ruler) in the sense of the head of the family or a person who manages the affairs of the family. The word "djis"" (Sarbarah) is also used to mean a provider. In the Urdu- English Dictionary by John Shakespear one of the meanings of sarbrahl ((jUo-) is the act of providing supplies. It is in this sense that Maulana Umar Ahmad Usmani interprets it in Fiqhul-Quran, Vol. III. 18. 'In support of the diluted meaning Maulana Abul Kalam Azad has referred to the pre Islamic concept about the members of the other sex being entitled to subservient status only and their duty is to serve the mem­ bers of the male sex. to obey ihem and satisfy their desires. The Quran has improved this status. For proper appreciaiion of ibis view it is necessary to refer to the various concept in which the role of a woman ranges from subordination to subjugation.

19. Jn Will DuTanl's Story of Civilization Vol. Ill , Pages 596, 597 is summed up Paul's instructions ;o his communities which they were required to follow siricily. "Women should keep quiet in Church. They must take a subordinate place. If they want to find out anyibing they siicu'd a^k tluir husbands at home : for it is disgraceful for a woman to speak in church Man was not made from woman, but woman from man ; and man was not created for woman, but woman for man. That is why she ought to w.ear upon her head something to symbolize her subjection." (See 1 Corimheans 1! : 3-16) He (Paul) ordered them to take veil at the risk of their heads being shaved, "If a woman does not wear a veil, let her hair be cut: but if it is dis­graceful for a woman to have her hair cut off or her head shaved, then let her wear a veil." (1 Corintheans 11:6) This was ibe Judaic and Greek view of woman (Story of Civilization by Will Durant, Vol. Ill, P. 597). In ancient Israel the husband had a pro­prietary right over his wife (Encyclopaedia of Religion of Ethics, Vol. 5. P. 724). The father could sell his daughter into bond-service (with con­ cubinage) though not to foreigners. He might cause a prodigal son to be stoned to death or a prodigal daughter to be burnt alive (Ibid P. 728). 20. The property right of women were as limited in Talmud as in Eighteen century England; their earnings and the income from their pro­ perties belonged to their husbands. (The Age of Faith by Will Durant P. 363). In law according to one Rabbi 'n hundred women are equal to only one witness'. 21. Even in the nineteenth ceniury in America ( New England ) a married woman had no legal existence apart trom ne> husband's. She could " not sue, contract, or even execute a will of b/er own ; her person, estate and wages became her husband':, when she took his nam; (Bonds of Women by Nancv F. Coti., P. 5), The property .reforms in most States started alte: 1839. In England ihe first Act 'The Married Women's Property Rights Act", was promulgated in 1882. As late a» ihe 18th century Sir William Blackstone published his influential commentaries on the laws of England in which he reaffirmed the legal inferiority of women. He held that women had no legal existence once married ; husband and wife were one person, in law, and that person was their husband. (New Standard Encyclopaedia on 'Women's Rights), section 37 of the Law of Property Act. 1925 declared that a husband and wife shall for all purposes of acquisition of any interest in property under a disposition made or coming into opera­ tion after the commencement of this Act, be treated as two persons. Law Rsforms (Married Women and Tortfeaser's Act, 1935) declared her to be capable of suing or being sued either in tort or in contract or otherwise, of acquiring holding and disposing of property and of rendering herself and being rendered liable in respect of any tort. Contract or debt or obligation (S. 1). It also declared that was her seperate property or may belong to her devolve upon her after this Act shall belong to her and may be disposed of by her as if she were a feme sole. 22. Among the Greeks the women were left in complete seclusion. She was expected to stay at home, and not allow herself to be seen at a window. Most of her life was spent in the women's quarters at the rear of the house; no male visitor was ever admitted there nor did she appear when men visited her husband. She could visit her relatives if properly veiled and attended. "The name of a decent woman, like her person, should be set up in the house" said Plutarch. (Story of Civilization by Will Durant. Vol. II, P. 305. Sec also Encyclopaedia of Religion and Ethics Vol. 5, P. 735). 23. In Roman Law a woman was considered legal minor under per­ petual tutelage of father and husband. (Patria Poiestas) 24. The condition of women among the Hindus is well known to persons residing in the sub-continent. Her position was no better than that of a slave and she had to be Sati (die by burning) on the cremation of her husband. 25. In Japan after'he corning of Confucian and Buddhist teachings woman's duty became thn; of obedience to her father, her husband & her son; when married her properly became the possession of her new family. (Encyclopaedia of Ethics & Religion Vol. 5, P. 740). 26. Thus generally the women were not considered econonnie indi­ vidual. On the other hand if they had property or earned wages or were made to earn wages, their income was spent only to provide econornit relief to their husband. Their position was of subjugated individuals. 27. Islam on the other hand placed woman and man both on the samer footing in economic independence, property rights and legal process. She! might follow any legitimate profession, kept her earnings, inherit property^ dispose of her belongings at will (Q. 4 : 32) (See The Age of Faith by] WillJ5urant P. 180). ' 28. The commentaries in which the conceptof dominion or sovereignty is advanced appear to be based upon the old conceptual trends. 29. The root word of "qawam" in Arabic is "f'y" or" p». (Qawwma) The words ''^l f>»'" (Qawama alq) means !o provide someone's needs, to support someone or furnish someone with the means of subsistence (Qawam a/a) will, therefore, mean a provider, a supporter to furnisher for another with the means of subsistence. It also means a manager, care-taker custodian or guardian. It is for this reason that Abdullah Yousaf Ali has translated the word 'f '.>•''' as meaning protector. Pickthal has translated it as incharge, which is the same thing as caretaker of guardian. Arberry inter­ prets it as one who manages the affairs of women. 30. This serse is more in accord with the subsequent language of this verse. The reason is that men spend their property for ihe support of women. Abdul Aziz Jaweesh says Al Islam Deen ul Fitrata Wai Hurrlya, P. 98 that the superiority if any is not for any natural proficiency in one and deficiency in another but it is only on account of the liability to main­ tain. It must follow that oi;e who does not maintain his wife should not be Qawwam. And this is exactly what is said in Al Bohr ul Moheet by Abu Hayyan Undlusi with reference to Qurtabt (P. 239). 31. The sens of a provider and a protector is very much included in the verse. By calling male a sovereign, the concept of his having full domi­ nion over her life and property both will have to be imported which can not be in accordance with the Quranic injunctions in which the life and property of all including that of women is sacrosanct. On the other hand F \Sharlah provides that even if the woman is wealthy enough or wealthier Jihan her husband, the latter is under an obligation to provide for her {maintenance keeping in view his own means as well as the status of woman in the society. The excellence of one over the other is in relation to the physical strength and the will and determination to fight and to protect vBecause Allah has given the one more (strength) than the other" connotes this excellence in strength. The word strength includes physical strength. They are for such reasons in a better position to safeguard the interest of women. 32. I think ;he best commentary of this verse is in the tradition of the holy Prophet (PBH) (Every one of you is a guardian and is responsible for his charges. The Imam (ruler) of the people is a guardian and is responsible for his charge ; -a man is the guardian of his family (Household) and is responsible for his charge ; a woman is the guardian of her husband's home and of his children and is responsible for them; and the slave of a man is a guardian of hii master's property and is responsible for it. Every one of you is a .guardian and responsible for his charges) (Bukharf). a ^j n means protector, custodian or a person who is responsible for the development of bis protected thing and Ihusheis required to be just and to look after its interests (Fathul Bart, Vol. 13. Page 112). 33. It may be clarified that the word f '^j" which is the root word of "plj" and "««s e j" means Jo graze, to tend, to take care of, to guard, to protect. •'£!/' means shepherd, herdsman, guardian, keeper, protector. in that sense carries the meaning of 'herd' or 'flock'. The functions of a shepherd are firstly to graze or tend 'he herd which makes him under take the responsibility of a provider, secondly to protect i' from the attacks of wild animals which gives it a sense of protecior and thirdly to see that a member of the flock does not stray from ihe path. In that case he can also exercise his authority of retribution, primarily ihe shepherd uses all means of love for keeping the members of the flock froni straying. It is only as a last resort that he may give them a slight beating. 34. The meaning of the verse which may now be reproduced fully from Abdullah Yousaf AlTs Commentary on the Quran will bear out this sense of a shepherd and it appears that a part of this Hadith is really a commentary of this verse : "Men are the proteciors . And maintainers of women, Because Allah has given The one more (strength) Than the other and because Theys upport them from their means. Therefore the righteous women Are devoutly obedient, and guard In (the husbands's) absence What Allah would have them g-uard." (Verse 4 : 34) It also appear from Hadith that the mantle of shepherdhood is not for the male only ; a female also may be a shepherdess. She enjoys that role over her children. In a case where'she is unmarried or widow or her husband deserts her or there is separation between the spouses, she becomes the Qawwam or guardian or mentor of those she has to look after. The verse deals with family in which the man and the wife are the two principal characters but in such a normal family also her position is that of second in command and in her children she has a flock to be shephered by her. In these circumstances it will be doing violence to the language of the verse to interpret in the sense that a man always holds some dominating position over the other sex. This is clarified by the Hadis. 35. The same result can be obtained from a reference to Q. 2 : 223, "Your women are a tilth for you (to cultivate)". This verse has been generally interpreted to be against the commission of an un-nalural sexual act with one's wife. There is, however, no justification for confining it to that matter. It also indicate; how a person is to act towards or to treat his wife. The treatment should be of a farmer handling and managing his land as lovinglv as possible and looking after it with such care and cau'ion which may enable him to get the best produce but of 'it. Maulana Amiri Aa.an Islahi has partly referred to his point while commenting upon this verse in Tadabbarul Quran. He says : . It is a common desire or. ihe par; of a tiller of the soil that he should obtain the best crop from his land and for this purpose to plough at the right time, to water i: and to give manure; to i; according to need, and see that it remains protected from seasonal calamity and the depredation of beasts of prey, grazing animals, birds, enemies and thieves. When he looks towards it, he will be gratified and pleased by iis verdure, and freshness and when the lime comes, he -may reap excessive crop." 36. The simile is very apt and is suggestive of the loving treatment lo which a wife is en tided. 37. The position of a "Qawam" guardian, manager, maintainer, provider, in whatever sense it is interpreted, does not give any particular triumph to the husband over the wife. Islam is a religion which sireises upon extreme discipline. It i? to this object that the holy Prophet advised that even daring a journey the co-travellers should choose from amongst themselves a chief i.e. a person who may look after their collective in:erest or so long as they travel together. In this view of the matter, it is not strange that need has been- felt for appointment of someone a the head of the family. This duty could naturally be assigned to one who undertakes the additional duty to maintain his wife and children, to look afrer the latter's training and education and also to guard 'hcrr r.cainst e\il doers. These are functions which can be more satisfactorily discharged by a male. Alternative agreement has been made.for the mother to act as second-in-command during the p r csence of the husband and an alternative head during his absence or even non-existence, as is clear from the above Hadith. In fact everyone is enjoined to look after persons who are in his care. 38. In classical Roman Law, a pqtriapotestas or ihe elder of the family was given the right even to kill the children. In the Old Testament in case of disobedience of the father by the son, the later was liable to be sentenced to death. But Islam does not allow the head of the family to kill anyone. The role of "Qawam" therefore being that of a protector, a manager, or maintainer, the position does not give him a particular edge over the members of his family. 39. On the other hand there is mutuality in ihe relationship of the spouses. The Quran says : "They (women) are raiment for you and yru arc rairrunt for them." (Q. 2 : 187) Q 9 : 71" "And the believers, men and women, are protecting friends one of another; they enjoin Ihe right and forbid the wrong, and they establish worship and they pay the poor due, and they obey Allah and His mes­ senger. As for these Allah will have mercy on them. Lo ! Allah is Mighty. Wise." There is thus mutuality in friendship and also in enjoining the right and forbiddipg the wrong. Even in the story of Adam and Eve Quran does not paint one as temptoress and the other acting under the enchanting influence of the other (Gen. 3 : 1-6). According to the stoiy in Genesis the woman first yields to temptation. But the Quranic slory keeps them on leave of equality even when satan leads them asiiay. "Tlien satan whispered to then ...... And he swore unto them : Lo ! I am a sincere advisor unto you. Thus did he lead them on with guile. And when they tasted of the tree. their shame was manifest to them...... ..And their Lord called them They sued : Our Lord ! we have wronged ourselves" (Q. 7 : 20-23). 40. The injunctions to men and women are similar aad their reward and punnisbmenl are equal. In some injunctions the man and woman both are addressed. Such injunctions may be regarding the duties or they may be regarding reward or punishment. O.33:35. "Lo I men who surrender unto Allah, and women who surrender, and men who believe, and women- who beli eve, and men who obey and women who obey, and men how speak the trurh and women who speak the truth, and men who persevere (in righteousness) and women who Tjerservere, and men who are humble, and women who are humble, and men who give alms and women who give alms, and men who fast and women who fast, and men who guard their modesty • and women who guard (their modesty), and men who remember Allah much and women who remember— Allah hath prepared for them for­ giveness and a vast reward."

i Bakra at the ;ime of War of Cacneis (J~? ^^) which wai- being fought under tbe leadership and command of Hazrat Aisha. This Hadith was described by Hazrat Abu Bakra in an internecine war in which boih the warring sides consisted of a large number of companions some of whom were illustrious and Hazrat Abu Bakra himself was in 'he rank and file of Hazrat Aisha. No companion of the Prophet of Allah disclaimed allegiance to Ha/rat Aisha on this around. Maulana Zafar Ahmad Usmani says that a number of companions of the Holy Prophet participated in this battle but none of them applied ihisHadith to the leadership of Hazrat Aisah (Ela ul Sunnan, Vol. XV, P. 28). 53. This difference of opinions on the question of appointment of woman as the Head of a State or as Qazi is not new. While some schools of thought opposed such appointment, Ibne Jarir Tabari who was in favour of legitimacy of appointment of women as Qazi also favoured her appoint­ ment as a Head of the State. According to Fathul Bart, Vol VIII, Page 128 (printed by Darul Fikr, Beirut ) (Chapter regarding "Letter of the Holy Prophet to Qisra") not only Tabari has permitted this but there is a similar reported view of Imam Malik also. On the basis of opinion of Imam Malik, the Malki jurists have also given verdicts in favour of ibis view. (Fathul Bari, Vol. XIII. Page 56) (Printed by Darul Fikr, Beirut ). 54. In the opinion given by Maulana Ashraf AH Tbanvi in "Fatawa-f- Imdadia'' Vol. V, Pp. 91-93, distinction has been made between Imamate Kubra (Headship of the Stale) and Qaza (judgeship). He says ihat though the jurists have made the maleni'ss of sex as a conditior precedent for legitimacy in headship of the state, it is not a condition precedent for judgeship. This is, however conditioned with "(Jll&f- 0>->" (to escape from sin) but there is no exemption on the basis of sex in the managership of a Waqf, executorship of wills and evidence. It is also a fact that Hazrai Umar had appointed Shifa Binte Abdullah as an Inspectress of Markets. This fact as well as her biography is given in "ilfl" (Elaul Sunan) Vol. XV, P. 27 by Maulana Zafar Ahmad Usmaui, and , "^ f-^j»~ "' Seerat-e-Aisha) by Syed Sulaiman Nadvi, P. 126. It may be stated thai Ibne Arab! cV,.~ not consider this Hadith 10 be correct but it is not possible to agree wiih this in view of reliante placed on this appointment by other distinguished jurists and Ulema. 55. There are also a number of historical instances about the exercise of jurisdiction of Qazi or Head of the State by women without any objec­ tion by the Ulema of that age. The oldest example is of the mother of Muqtadar Billah who presided at the High Court of Appeal (History of Saracens by Amir Ali, P. 455, "Tarlkhul Khuiafa" by Sayooti, P. 381). From this later book it appears that she decided criminal cases. Razia Sultana as a Head of the State also decided cases. (Administration of Justice In Medieval India by M.B. Ahmad. P. 94). The name of Shajarut-ul-Durr is frequently mentioned in this connection by the juris.s 56. It is unnecessary to quote many examples, it may be sufficient to cite the summing up in the "Introduction to Islam" by Dr. Hamidullah P. 137 in regard 10 (he working of women in different capacities : "In every epoch of Islamic history, including the time of the Prophet, one sees Muslim women engaged in every profession that suited them They worked as nurses, teachers, and even as combatants by the side of men when necessary, in addition to being singers, hair-dressers, cooks, etc. Caliph Umar employed a lady, Shi fa bint Abdullah a inspector in the market at the capital (Vfadinah) as Ibne Hajar (Isabah) records. The same lady had taught Hafsah, wife of the Prophet, how to write and read. The jurists admit the possibility of women being appointed as judges of tribunals, and there are several examples of the kind. In brief, far from becoming a parasite, a woman could collaborate with men in Muslim society to earn her livelihood and to develop her." 57. There is a Hadith from Buraida that two categories of the Qazis will be in hell and only one will be in paradise. Those who will be in paradise are those who decide disputes on the basis of assessment of truth. But if anyone realises the truth but passes an order contrary to it he will be in hell. Similarly that Qazi will be in hell who does not strive at finding out the truth (J4 4» t^'J &&) (Ela ol Sunnan, Vol. 15. P. 25). 58. Imam Ibne Taimia argued in "^te-Jl" (Almuntaqa) that the appointment of a woman as Qazi is not correct since the word "Jr/ 1 (men) has been used in relation to the Qazi at all the three places. This argu­ment does not appreciate that it was not intended to lay stress upon the sex of the Qazi ; the intention is only to categorise Qazis in a manner so as to demonstrate a> to how they should act and how they are likely to act. The only manner in which he should act is to strive at reaching the truth and then to decide and to refrain from shirking the truth. Even other­ wise the masculine is more often used by way of Taghlib (being customary among the majority) and by habit to describe something which applies to ! members of the masculine as well as the feminine gender. Unless there be some repugnance in the context, ihe male will include the female also (^1^1 (Elaul Sunan) Vol. XV, P. 26). 59. Abu Bakr bin Tayyab Shafai opposed the view of Imam Abu Hanifa and Imam Ibne Jam on the ground that it is not suitable for a woman to appear in public, to have contacts with men and to talk to them on equal termi because if she is young, it is not permissible to look !o her and to listen to what shf says and it will also not be right for h r to appear among>t men without pardah or to look towards them. 60. In order to furnish a reply to this objection Maulana Zafar Ahmad Usmani tries to distinguish between what is merely allowed and what ought to be done (Sec Ela ul Sunnan, Vol. XV, P. 28). According to him Imam Abu Manila has only given an opinion that judgeship of a woman is not incorrect but he nowhere said that she should be so appointed. He gives an example that if on account of "t&jZ +ile." (her a\ve inspiring magnificance) she decides some dispute, her judgeship will be unobjec­ tionable. 61. This distinction appears to be without any distinction In the absence of any prohibition the appointment, if made, will be treated tobe legal, irrespective of any other consideration. The verdict of legality would furnish sufficient ground for appointment of a women as Qazi. .It is quite possible that Imam Abu Hanifa and Imam Ibne larir while giving their respective opinions had in view the awe-inspiring dignity of the office of a judge in which the judge has to maintain the authority and dignity of court and it >s not permissible either on his part or on the part of litigants to venture to be disrespectful to the Court or, to say in the Court anything which is irrelevant to the case. The litigants and members of the public present have 10 be respectful in their dealings towards the Court. The Court has to keep its decorum and for this purpose it is armed with powers to deal with a strong hand with cases of contempt of Court (See the Provisions of the Contempt of Court Act and section 228, Pakistan Penal Code). What is stated by Maulana Zafar Ahmad Usmani as an exception is really a rule in Courts. Armed with powers to deal with insult to the Court or even interruption in its proceedings a woman Kazi is also immune from the disrespectful conduct of others. 62. It is very strange as stated by Abu Bakr Ibne Tayyab Shane that even bearing the voice of a woman is not permissible. This is contrary to the Injunctions of the holy Quran in which the wives of the Holy Prophet are directed not to speak softly and politely to strangers (other than those who are "mahram") but to show some sternness. Hazrat Saudah was allowed by the Prophet 'o go out of her house whenever necessary. As far as the objection about looking to one another is concerned, it has probably been taken from the order li-M" pp. 272-224, said that because of the defect in intelligence her evidence is equal to half of the evidence of man. 66. From the opinion of Ibne Ha?.am it appears that except for the defect in evidence there is no other defect ot intelligence in a woman. This is a refutation of the argument in favour of the objection against her judgeship. Abdul Hamid Matwali in his book (mubadl e nlzamul hukam fit Islam) P S'" 7 has trird to prove that this isolated Hadiih (Hadith A'had)) is not acceptable as correct - 67. There are a number of precedents in which women were consulted or their opinions prevailed. It is widely known that the Holy Prophet con­ sulted Hazrat Umme Salma. On the occasion of Treaiy of Hudaibia the companions were not willing to sacrifice animals at that place and to open their "Ehram" (unsewn cloth tied around the waist for Haj) which they were wearing for the purpose of Vmra.i Hazrat Umme Salma advised the Holy Prophet to take precedence in sacrifice and opening of Ehram. It is established that all the companions then followed the Holy Prophet. Similarly there are cases in which Hazaat Aisha corrected Hazrat Abu Huraira in respect of traditions on the basis of their repugnancy with Quran. Her objections involved consideration of juristic reasoning. A lady interrupted Hazrat Umar successfully in regard to bis proposal about fixation of dower at a low level. After assassination of Hazrat Umar the Board appointed by him for seleciion of a Caliph ^oniulied women also. In this view of the matter we agree with the opinion of Mauiana Umar Ahmad Usmani in Fiqhul Quran, Vol. HI. Pp. 280-281 that if there had been a defect in their intelligence they would not have been consulted noi mam Tabari and Imam Abu Haneefa would have given opinion in favour of their appointimeni as judges 68. It may be stated that the person who first accepted Islam was a woman /. t Hazrat Khadija. There are a number of ladies who either reported Ahadilh from the Holy Prophel or committed them to memory but the main difference between them and the male reporters is that though a large number of male reporters were charged wiifa Caking Ahadilh, "no such charge or blame lies against any female. It is historical fact that people used to come far and near to consult these ladies who were learned in hadith. In any case there appears to be weight in the opinion of Ibne Hazam that the words "JiMolvail" (deficient in intelligence) was said almost in relations to evidence and not to any other functions or attributes. 69. The view that women cannot appear as a witness in matters of \Hudood and Qisos is only a juristic view and is not based on either Quran or JJiadith. It is not based on any precedent of the Holy Prophet in which he (might have refused to accept the evidence of a i e'" in this verse«s "so that mankind may observe tbe right measure" but tbe translation does not -correctly indicate the sense in which the above words are used. Arberry has correctly translated it as "So that men (people) might uphold justice". 80. The words J- {Adi) or "V~» (Qbi), no doubt, are used in a much wider sense and each Muslim whether male or female is bound to be just and equitable in his dealings with his spouse, parents, children, neigh­ boured, relatives, friends, fellow Muslims and all others. The concept of justice in deciding disputes between the parties or in deciding criminal casei is only a part of Adi or Qist The first two verses Q. 4 : 58 and Q. 5 : 42 clearly envisage the determination of disputes or litigation. There is no distinction in this connection between man and woman. In view of this, particularly in the absence of any prohibition in Quran or Haditb about the judgeship of a woman or any restriction limiting the function of decid­ ing disputes to men only ; the generality of these verses cannot be ct»t down. From whatever angle it may be- looked there appears to be n« merit in the objection raised by the petitioner against the appointment of women to judicial offices. 81. The Quran allows a woman to earn money. In tbe Chapter relating to women (Q. 4 : 32) it is declared "Unto man a fonnte fr»» that which tb«y have earned, and unto women a fortune fron that which they have earned." There are instances nt which tbe woman took to some profession for earning. Hazrat Zainab ^ffaned skins and thread bceds to sell to earn money for the poor. (Women in tfvallm History by Charis Waddy, P. 19). 82. Mrs. Salima Nasiruddin and Mrs. Rashida Patel argued that women are also entitled to as much education as men. There is no dispute on the question of the right of the women to acquire education. There is also no dispute that in respect of Ilm Islam does not distinguish between man and woman but on account of the incidence of Pardon there is opposition from certain quarters to their obtaining higher education in colleges and universities. It is, however, unnecessary to persuc this matter further since the number of women being almost half in the population of any country, it is necessary that there should be sufficient number of lady doctors to attend them and teachers to teach ihem. Sometimes it is not possible for a female patient to consult a Doctor without exposing parts of her body which must be kept concealed. It would be better if there be lady doctors to attend to such patients. The job of a Gacnacologiit should be better left to a woman. The importance of education in the present age cannot, therefore, be denied or even minimised. 83. A Booklet known as Universal Islamic Declaration of Human Xigktt ims been published by Mr. Salem Azzam, Secretary General. Islamic Foundation, London . It gives a list of the human rights as recog- aneed by Islam. The third right which deals with ihe equality before "Law, entitlement to equal opportunities and protection of the Lw also provides firstly that all persons shajl be entitled 10 equal wages for equal work and secondly that no pcrsoa shall be denied the opportunity to work or be discriminated against in any manner or exposed to greater physical risk by r eason of religious belief, colour, race, origin, sex or language. This ruie supports the view taken by us. 84. Before finishing this it may be clarified that we save not een able to find any justification for (he imposition of conditions on an ppointmem of a woman Qazi. In fact the opinion of Dr. Tanzjlur ehman in his book Islam Ka Nizam-c-Adalaf. P. 41 is also without any ndition since he agrees with the view of Imam Abu Hanifa. 85. There is no merit in thii petition which is dismissed. (TQM) . Pftttttm dtsmtsttd ?>

P L J 1983 F S C 24 P L J 1983 F S C 24 (Original Jurisdiction) Present: aftab hussain. C.J., A li hussain qazilbash, zahoobul haq. ch. muhammad sidoiq, mauk ghulam A li, pjr mohammad karam shah A muhammad taqi usmani, JJ MUHAMMAD SADIQ KHAN—Petitioner versus FEDERATION OF PAKISTAN —Responded Shariat Petition No. 3/P ol 198,', decided on 25-1C-1982 Per Aftab Hussain, C.J. (Ali Hussain Qazilbasb. Ch Muhammad Siddiq, Malik Ghulana Ali ft Pir Mohammad Karam Shah concurring) : (i) Constitution of Pakistan . (1973)— —-Arts. 203-D & 203-B (c)—Law—Repugnancy with Stow/a—Correction ol—Federal Shariat Court—Jurisdiction of— Held: Federal Shariat Court having been conferred jurisdiction to correct only a "Law" within meainf of Art.203-B (c) in order to remove its rpcugnancy with Sharif, "Law" dealing with matter? excepted from its definition to he beyond pale of jurisdiction of Court. (P. 28J/« (ii) Constitution of Pakistan (1973 — -—Art. 203-B (c)— Fiscal law—Meaning of— Held: fiscal Jaw not to be confined to matters pertaining to public revenue only but to be flven extended meaning so as to include private financial matters. [P. 29430] £> iiii) Constitution of Pakistan (1973)—

Art. 203-B (c)—Fiscal Law—Interest—Laws concerning— HeU : Law, concerning interest to be fiscal law. [P. 30] £ Corpus Juris Secundum, Vol. 36, P. 825. Oxford English Dictionary ft Black's Law Dictionary ref. (it) Constitution of Pakistan (1973)-

Arts. 203-D A 203-B (c) and Transfer of Property Act (IV of 1882)— S.58 (d) —Repugpnancy of provisions of law to Injunctions of Islam—Usu­ fructuary mortgage—Provisions rcgaiding—Challenge to—Laws concerning interest—Protection of—Petitioner challenging v/r« of S. 58 (d) of Act IV of 1882 on ground that allowing mortgagee to remain in possession of mortgaged property and to receive its rent and profits after paymem of principal amount and allowing him to appropriate additional rents and profits in lieu of interest to amount to permitting Riba—Held: Primaryaim of excluding fiscal laws from jurisdiction of Federal Shariat Court being" to give protection to all laws concerning interest, no distinction to be made between one type of Banks or Insurance Companies and another — Held further : Laws relating to interest applicable to Govern­ment Companies or to private persons having been given protection for three years, provision challenged not to be within jurisdiction of Federal Shariat Court. [P. 30] F Shariat Petition No. 71/L of 1979 ref. (t) Words & Phrases - Word "Fiscal"— Meaning of. [P. 28.29] B & C Law Terms & Phrases Judicially Interpreted by Sardar Muhammajd Iqbal Mokal ; Reader's Digest Great Encyclopaedic Dictionary; Corpus Juris Secundum ; Black's Law Dictionary & Oxford English ^Dictionary ref, Per Zahoorul Haq, J . (Ti) Constitution of Pakistan (1973)— - Arts. 203-D & 203-B (c) and Transfer of Property Act (IV of 1882)— S. 58 (d) — Fiscal law— Challenge to — Federal Shariat Court— Jurisdiction of— Held : Provisions of S. 58 (d) of Act IV of 1882 dealing with payment of debt and its interest to be fiscal law and to be excluded from jurisdic­ tion of Federal Shariat Court. [P. 30] G (rii) Constitution of Pakistan (1973)— -- Art. 203-B (c)— Word "Fiscal"— Meaning of— Held: Word "fiscal" nowadays being used in extended meaning to cover financial matters /.. oney, taxes, public or private revenues etc. or pertaining to public finances of Go vt, or Private finances of business — Held further: Word "finance" to cov.r case of borrowing money at interest. [P. 30]# [viil) Transfer of Property Act (IV of 1882)— -- S. 58 (d) reatl with Constitution of Pakistan , 1973— Arts. 203-D & 203-B (c) — Usufructuary mortgage — Provisions regarding — Challenge to — Repugnancy to Injunctions of Islam— Federal Shariat Court — Jurisdic­ tion of — Peiiiioner challenging provisions of S. 58 (d) of Act IV of 1882 before Federal Shariat Court on ground of same being repugnant to Injunctions of Islam — Held : Section 58 (d) of Act being law defining usufructuary mortgage and stipulating payment of mortgage money as loan by mortgagee to mortgagor and mortgagor delivering possession of his property as security for payment of said loan with further stipulation that rents or profits of property be appropriated by mortgagee towards paymen of interest on said loan or towards pavement of loan or partly for either of them, to i>e essentially law in respect of securing and payment of loan and interest for same being financial and fiscal, law to be excluded from jurisdiction of Federal Shariat Court. [P.30&31]/ <ix) Constitution of Pakistan (1973)— -— — Arts. 203-D & 203-B (c) — Fiscal Law- Meaning of— Laws concerning interest — Challenge to — Federal Shariat Court — Jurisdiction of— Held: Every Jaw concerning itself with payment of interest in any form and dealing with or wihout borrowing of money, not automatically to be covered by expression "fiscal or financial law" to be excluded from jurisdiction of Federal Shariat Court—Held further: Vires of Jaw^ having provision of interest incidentally not as matter of rule to be refused to be considered ard all provisions of such law to be construed to arrive at pro­ per conclusion (Minority View)— (Aftab Hussain, C.J ; Ali Hussain Qazilbasb, Cb. Mohammad Siddiq, Pir Karam Shah & Malik Ghulam Ali, JJ; contra). [P. 31] K (X) Courts—

Duties of—Reasonableness of law—Challenge to— Held : Courts not to concern with reasonableness of law as long as same made by competent Legislature and within bounds of Constitution or Islamic Injunctions. [P. 3!] L Per Muhammad Taqi Usmani, J. (Minority view) : (xi) Constitution of Pakistan (1973)—

Art. 203-B (c)-Fisc a l Law—Meaning of—Held; Words "fiscal law" to be construed as "laws relating, to public finance of Government" and being not confined 10 laws" relating to levy and collection of taxes and fees" to encompass every law relating to financial operations of Govrenmcnt such as laws relating to Government loans', securities etc. (Contra : Aftab Hussain, C.J ; Ali Hussain Qazilbasb, Zahooru! Haq, Ch. Mohammad Siddiq, Malik Ghulam Ali & Pir Muhfcmmad Karam Shah, JJ). [P. 35] W (xii) Constitution of Pakistan (1973)—

Arts. 203-D & 203-B (c) and Transfer of Property Act (IV of 1882) —S. 58 (d)— Repugnancy of law to Injunctions of Islam—Fiscal law— Meaning of— Federal Shariat Court —Jurisdiction of— Held : Words "Fiscal Law" in Art. 203-B (c) to be restricted to laws relating to public finances of Government and not to be extended to private financial trans­ actions—Held further: S. 58 (d) of Act IV of 1882 to fall within jurisdic­ tion of Federal Shariat Court and its vires to be competently examined by Court in light of Holy Quran and Sunnah Contra ': Aftab Hussaiq C.J.. Ali Hussain Qazilbash. Zahoorul Haq , Ch. Muhammad Siddiq, Malik Ghulam Ali & Pir Muhammad Karam Shah, JJ). [P. 3t>]X (xiii) Federal Shariat Court —

Jurisdiction of—Fiscal laws—Exclusion from—Held : Object of Federal Shariat Court being Islamisation of existing laws. Court empowered to examine such laws in light of Holy Quran and Sunnah—Held further: Exclusion of fiscal laws from jurisdiction of Court being to avoid con­ sequent vacuum to be resulted in financial system of Government in event of sudden change in such law, Legislature not to be attributed intention to maintain status quo in legal system of country. [P. 34] U (xiv) Interpretation of Statutes—

Words—Ordipary meaning of—Held: Words of statute to be given their common or popular meanings and wherein word can be construed in three different ways, one commonly "used in ordinary expression to be pre­ ferred. (P. 33) N (xt) Interpretatioa of Statutes—

Intention of Legislature— Held : Where two or more constructions be possible,'effect and consequence of each construction to be considered to ascertain intention of Legislature. [P. 33] P Crates on Statute law (6th Edn. Pp. 94 & 95) ref. (xt!) Interpretation of Statutes—

Justice, reasonableness and sensibility—Meaning according with— Adoption of— Held: Where words admit of two different meanings, that according with justice, reasonableness and sensibility to be adopted while one producing great hars hness or absurdity or defeating object of statute to be discarded. [P.34] S Crates on Statute Law (6th Edn. Pp. 70, 86 & 95) ref. (xvii) Interpretation of Statutes— ——Intention of Legislature— Held : Drastic curtailment of powers of 'court not to be intended by Legislature except where expressly and in unambiguous terms stated. [P. 34] T (xviii) Words & Phrases—

-Word "finance"—Meaning of— Held : Word "finance" to bear most of meanings embracing all monetary transactions including settlement with creditor, payment of debt, parting of money at interest, borrowing of money at interest and management of pecuniary affairs. [P. 33] R Oxford English Dictionary ; Corpus Juris Secundum & Living Webster Dictionary ref. (xix) Words & Phrases—

Word "Public finances"—Meaning of— Held: Word "public finance" not to be restricted to public revenue but to cover all financial operations of Government. [P. 35] V (xx) Words & Phrases —Word "Financial—Meaning of. [P. 33] Q Living Webster Dictionary. (3rd Edn. 1974) ref. (xxi) Words & Phrases —Word "fiscal"—Meaning of. [Pp. 32 & 33] M & O Black's Law Dictionary & Corpus Juris Secundum ref. Mr. Ghulam Mustafa, Advocate for Petitioner. Mr. ftiazul Hasan Gilant, Advocate for Respondent. Date of hear it g : 17-4-1982. judgment Aftab Hussain, C.J.—Petition No. 3/P of 1981 challenges the fires of section 58 (d) of the Transfer of Property Act which is as follows : "Usufructuary mortgage. —Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to mortgagee, and authorizes him ta retain such possession until payment of the mortgage-money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in pay­ ment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee". 2. The objection is that allowing mortgagee to remain in possession of. the mortgaged property and to receive its rents and profits after'the principal amount is paid up and allowing him to appropriate the additional. rents and profits in lieu of interest amounts to permitting Riba which is prohibited by the holy Quran. 3. A preliminary objection was raised by Mr. Riazul Hasan Gilani. learned counsel for the Federal Government that the petition questions the legality of a fiscal law to which -the jurisdiciion of this Court does not extend. We have heard the learned counsel on this issue, and propose to uphold that objection. 4. Article 203-B (c) is as follows : — (c) "law" includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or tribunal or, until the expiration of three years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure." 'Law' thus does no! include : - (1) The Constitution. (2) Muslim Personal Law, or (3) any law relating to the procedure of any Court or tribunal. and until expiration of three years from commencement of Chapter 3-A of Constitution (4) any fiscal law, or (5) any law relating to the levy and collection of taxes and fees, or (6) any law relating to the banking or insurance practice and procedure. Since Article' 203-D confers upon this Court the jurisdiction to correct only! a law so as to remove its repugnance with Shariah, the impact of the defini-U tion is that any law dealing with matters excepted from its definition would] be beyond the pale of the jurisdiction of this Court. 5. The expression 'fiscal law' is not defined in the Constitution. The intention of the Constitution maker can therefore be gathered from a reference to its dictionary meanings, as well as con:ext including what preceds or follows it. 6. The preponderating sense in which the word 'fiscal' as an adjective to statutes is used is in regard to'money, taxes, public treasury'. Thus inj "Law Terms and Phrases Judicially interpreted" by Sardar Mohammad Iqbal Khan Mokal 'fiscal law' is defined as : "Statutes that relate to the collection of taxes from people by the Government, e.g., the Stamp Act, the Court Fees Act, etc." In the Reader's Digest Great Encyclopaedic Dictionary the word 'fisc' is said to mean : "Public treasury of ancient Rome ; Roman emperor's privy purse. Public Treasury into which estates lapse by escheat." This is the sense in which, as will be seen later, the word fiscal has been .used since its origin in the Roman Law. But it is difficult to concede that sense in Article 203-B in so far as the Laws about taxes or fees are laws dealing with public revenues and are specifically excluded from the jurisdiction of this Court which means that the expression fiscal lav it either a totally different category of law or a category which includes seme other matters also. This point was conceded by the learned coamd for the petitioner in this case. 7. It appears that the word fiscal was originally used as stated abovcL. in the sense of something pertaining to public revenues but now it has beeaT given an extended connotation. 8. Hie word 'fisc' in Corpus Juris Stewu&m, Vol. 36. Page 825 explained as an anglicised form of the latin fitcta and defined as meaning 'treasury of a kingdom or a state, money chest 9. The meaning of the word 'fiscal is as follows — "Financial, pertaining to finance ; relating to accounts or the manage­ ment of revenue ; of or pertaining to the treasury or public finances of a government. The term imports some relation to financial operations, and has been held synonymous with "financial" see Financial 36 Corpus Juris Sectmdwn. Page 765. note 24." 10. In the Blade' Law Dictionary abo the words 'fisc and fiscal are •expressed as follows : ' "Ftsc. A treasury of a kingdom, nation, a state, or other governmental body. An Anglicised form of the Latin "Jbcus" (which see)." "Fiscal, in general, having to do with financial matters ; i.e. money. taxes, public or private revenues, etc. Belonging to tbefisc. or public treasury. Relating to accounts or the management of revenue. Of or pertaining to the public finances of a Government or private finances of business." 11. The word 'fisc' is similarly explained in Oxford English Dictionary. According to it ihe word fiscal means not only "of or pertaining to the fisc or treasury of a state or prince ; or pertaining to the public revenue", but also "of or pertaining to financial matters in general". Similar wider meanings are given in other dictionaries also. 12. The learned counsel for die petitioner urged that the word 'fiscal law' in Article 23.1-B should be interpreted in its preponderating sense of laws pertaining to public revenue or public treasury. When his attention was drawn to Black's Law Dictionary and Oxford Dictionary he submitted that the extended meaning of fiscal' that is, "of something pertaining to financial matters generally" cannot be applied to Article 203-B. 13. He also argued that if the word fiscal is interpreted as meaning financial matters generally, all the laws which not only pertain to borrowing and lending but also to sale and purchase, for example the Contract Act, as well as the Sale of Goods Act will also have to be included in,the category of laws which are outside the jurisdiction of this Court. 14. It is difficult to give such a narrow interpretation as suggested by the learned counsel to the expression 'fiscal law in view of the language in which the word law is defined. The laws relating to the levy and collection of taxes and fees which are laws about public revenue, are treated as a category separate from fiscal law. Thus the intention of the law makers is clear that fiscal law is something different D from the laws of taxes or fees. This was conceded by the learned counsel for the petitioner also. In this view of the matter it is not possible to •confine, fiijal law to matters p=riaining to public revenue only but it will leave to be piven an extended meaning so as to include private financial /matters. ' . 15. The other objection that it may have to be interpreted as including laws of sale and purchase of property and goods is not relevant. At present what is relevant is whether the word fiscal law includes law allowing interest. That it docs include such laws will be clear from the considera­ tion of the meaning of financial matters, since as seen in Corpus Juris Secundum Vol. 36, Page. 825, the Oxford English Dictionary and the Black's Law Dictionary, the word fiscal imports same relation to private financial operations. The word finance according to the Oxford English Dictionary means "settlement with a creditor ; payment of debt ; parting of money at interest.. ..." According to Corups Juris Secundum, Vol. 36, one of the meanings of word finance is "borrowing of money at interest". Clearly therefore a law concerning interest is a fiscal law. 16. The primary aim of excluding fiscal laws from the jurisdiction of this Court appears to be to give protection to all laws concerning interest. It would have been opposed to the principle of equality if the Government had given this protection to its own Banks or Insurance Companies and taken it away from privately owned Banks or Insurance Companies., It i for this reason that no distinction is made between one type of Banks or Insurance Companies and another. On the same principle it appear, that the laws relating to interest whether applicable to government or to com­ panies or to private persons have been given protection for three years. We ire, therefore, of the view that the provision challenged by the petitioner ia [his case is not within our jurisdiction. Same view was taken by,the Sbariat Bench of the Lahore High Court in Shariat Petition No. 71/L of 1979, Mian Zahoor Ahmad v. The Central Government, decided on 18-3-1980. The petiiion is dismissed. Zahoorul Haq, J.—I have had the advantage of perusing the elaborate arguments of the Hon'ble Chief Justice in the judgment proposed to be /delivered by him. I agree that section 58 (d) is a fiscal law as it deals with (payment of debt and its interest, is excluned from our jurisdiction and that I the petition may be dismissed. But I have some reservations in respect Jof last sentence of para 15 and the contents of para 16 which according to my humble view were not necessary for the disposal of this petition and should have been left to be considered in an appropriate case. 2. I agree that word "fiscal" is nowadays being used in an extended (meaning and it has to do with financial matters i.e., money, taxes, public sr private revenues etc. or pertaining to the public finances of a Governicnt or private finances of business. I further agree with respect that (the word finance would cover the case of borrowing money at interest. It was all very relevant upto this stage. 3. But with very great respect I do not agree that it was further necessary to hold that "clearly therefore a law concerning interest is a fiscal law" which is a very wide expression and is not really directly involv d in this case. The petition could be disposed of on the ground that Sec­ tion 58 (</) of the Transfer of Property Act is a law which defines usufru­ ctuary mortgage and stipulates payment of mortgage money as a loan by mortgagee to mortgagor, and mortgagor delivers possession of his property as a security for the paym;n: of the said loan with further stipulation that the rents or profits of that property may be appropriated by the Mortgagee either towards payment of interest on the said loan or towards the pay­ ment of the said loan or partly for either of the same and it is thus essen­ tially a law in respect of securing and payment of loan and interest for the same and therefore it is a financial and fiscal law excluded from our jurisdiction. 4. I bave'serious reservations on the point that every law which con cerns itself with payment of interest, in whatever casual, incidental form and whether dealing with borrowing«f money or not, would automatically be covered by the expression "Fiscal or Financial Law" and would be excluded from ourjurisdiction. A great deal of situations can be con ceived where a law may concern itself with interest incidentally without the stipulation of a debt or parting of money with interest and that law may not be a fiscal or financial law in every case. Every challenge to that law shall have to be decided on the basis of the provisions of that law. We shall not be justified, as a matter of rule, in refusing to consider the vires of a law which has a provision of interest incidentally. But we should examine whether the provision of interest is such which has the effect of a fiscal law or that it is merely incidental or accidental to some other provision and does not travel so far as to make it fiscal law. In fact all the provisions may have to be construed in order to arrive at a proper conclusion. 5. For instance if a provision was made in the Sale of Goods Act obliging the buyer of the goods to pay 15% interest to the seller on the total value of the goods in case the buyer makes a breach of the contract to purchase the goods in time but is willing to pay for the same and take the delivery of the goods within a space of 15 days beyond the fixed time and at the same time it obliges the seller to deliver the goods to buyer in case he tenders the price plus interest as stipulated, then in such a situat'on it would be rather difficult to brand such a provision of law as a fiscal law merely because it makes a provision of interest. It could be argued that the provision of interest was merely a provision making the liquidated damages certain and fixed in order to avoid litigation and therefore the provision was merely in respect of sale goods and not a fiscal Jaw as the provision of interest was merely of a coincidental nature and not of a substantial nature in this law. Such examples could of course be multiplied but I do not want to enter into an elaborate discussion of the same at this stage as I am of the view that this petition could be disposed of on the grounds indicated in the first para of my judgment. 6. As to the argument that the exclusion of all fiscal laws from the jurisdiciion of this Court has given equal treatment to Government Banks and Insurance Companies as well as the privaiC Banks and Insurance Companies, suffice it to say thai the Courts are not concerned with reason-! ableness of law as long as it is made by a competent Legislature and within?/, the bounds of the Constitution or the Islamic Injunctions, as the case may) b;. In any case the whole set of laws in respect of procedure and practice of banking and insurance siand excluded separately apart from the fiscal laws. 7. With the observations made above I agree that this petition be dismissed. Mohammad Taqi Usmani J. —I have had the benefit of perusing the judg­ ment of the Honourable Chief Justice in this case. While appreciating the academic effort he has undertaken in construing the word 'Fiscal Law'1 feel myself constrained to dissent from the reasoning, and consequently the conclusions expressed therein. 2. The substance of this petition and the objection in Ifmine raised by the learned counsel for the respondent is mentioned in the first three paragraphs of the said judgment. It is therefore, unnecessary to repeat them here. Suffice to point out that the primary issue in this case is whether section 5S(</) of the Transfer of Property Act is a "Fiscal Law" within the meaning of Article 203-B (c) so as to be excluded from the jurisdiction of this Court. 3. This necessitates an enquiry into the meaning of the term "Fiscal Law" as used in the said Article. In view of the fact that ihis term is not defined in the Constitution, we are to construe it in accordance with the accepted principles of Interpretation. 4. The word "Fiscal" (when employed as an adjective), by reference to authoritative dictionaries, clearly admits of three different meanings, namely : a) Pertaining to national or public revenue (hereinafter referred to as "the first meaning") (6) Pertaining to financial matters in general (hereinafter referred to as "the second meaning") (c) Pertaining to the public finances, or financial affairs of a govern­ ment (hereinafter referred to as "the third meaning") The first two meanings are discussed in the judgment of the Honourable Chief Justice, while the third one has not been dealt with therein. This meaning, however, appears in the authoritative dictionaries as a separate alternative one as will more fully appear hereinafter. 5. The issue may accordingly be crisply stated as follows :— Which of the aforesaid three meanings has been intended by the Legislature in using the term "Fiscal Law" in Article 203-B(c) of the Constitution ? In order to ascertain the intention of the Legislature, I shall deal with each of the said meanings seriatim. In regard to the first meaning (i.e. "pertaining to the public revenue,") it was contended that the word "Fiscal Law" in the said Article of the Constitution cannot be restricted to the revenue laws. This contention was based on the fact that the law "relating to the levy and collection of taxes and fees" appear separately after the word "Fiscal Law" in the same Article. The argument runs that the Legislature could not have indulged in tautology and must have intended something different by the use of the term "Fiscal Law". This argument has merit, and consequently^ it is difficult to apply the first meaning here. As for the second meaning '(I.e. "Pertaining to financial matters in general)," it undoubtedly appears in several dictionaries, but is nevertheless more difficult in my opinion to apply in Article 203-B(c) of ihe Constitution. The reasons are as toliows :— (0 It is well-known principle of interpretation that the words statute must be given their ordinary, common or popular meanings. a Word can be construed in three different ways, we must prefer the one which is commonly used in ordinary expressions. The word "Fiscal" not commonly used in the sense of "financial matters in general." This fact is evident from the "Corpus Juris Secundum" (V. 36, P. 491) which defines the word "Fiscal as follows :— "While the word ''Fiscal" as an adjective may be used to mean of or pertaining to financial matters generally ............ , the term is commonly used to signify pf or pertaining to public treasury or revenue; of or partaining to the treasury or public finances of a government." (Italics mine) This clearly shows that this second meaning of the word is not common in general or popular usage, but is only a potential one. Moreover, it cannot be denied that the word "Fiscal", would hardlyi convey to the mind of a person with a reasonable knowledge of the English!.. language the meaning of private financial transactions. The general inJ-f^ pression created by this word is that it relates to the financial aspect off a government, and not to the financial matters in general. There seems no reason, therefore, to apply this potential meaning in Article 203-B (c) of the Constitution leaving aside the meanings which arc common and popular in general usage. (ii) The learned counsel for the petitioner has raised the objection that if the second meaning is adopted in Article 203-B (c) of the Constitution, all the laws whieh not only pertain to the lending or borrowing of money, but also to sale, hire and purchase will stand excluded from the jurisdiction of this Court, because these laws relate to "the financial matters in general." . This objection is very material in my view, and cannot be overlooked by regarding it was irrelevant in this case. Where two or more construc-l tions are possible, the effect and consequences of each construction are top be considered to ascertain the intention of the Legislature. This principle! is well established and needs no citation of authorities. Suffice to quote following apposite remarks : "If the enactment is, as Brett L.J. said in the R.L. Alston, "unfor­ tunately expressed in such language that is leaves it quite as much open, with regards to its form of expression, to the one interpretation as to the other ............ we must try and get at the meaning of what was intended by considering the consequences pf earlier cons­ truction." (Craies: On Statute Law, 6th Ed Pp. 94, 95) It is necessary, therefore, to refer to the dictionary meaning of thel word 'Financial' when used as an adjective. The Living Webster Dtcttonary\ of the English language defines "Financial" as "of or pertaining to finance! or mcmey matters" (3rd Ed. 1974, the English Language Institute of| America ). The word "Finance, in turn, bears a host of meanings which embrace all monetary transactions whether public or private. These meanings in­ clude "Settlement with a creditor, payment of debi, parting of money ai ( Oxford Engliih Dictionary) ''borrowing of money at ", Corpus Juki's Secitndum) "ihe management of pecuniary affairs " (The LMng Webster Dictionary : Op. cit.) Most of these meanings encompass the whole field of commercial law, or the law of obligations such as, law of sale, hire, partnership, mortgage/- pledge, guarantee and so forth It follows that the construction of the word. "Fiscal" as "Financial matters in general" t will bring the whole area of commercial dealing within its scope. Once the term "Fiscal Law" is interpreted as "a Law relating to all financial matters, both public and private" th,ere remains no basis to draw a distinction between interest bear­ ing transactions and transactions unrelated to interest. It is a settled principle of interpretation that where words in a statute admit of different meanings that meaning will be adopted which accords wi.th justice, reasonableness and sensibility, and that meaning will S be discarded which produces great harshness or absurdity, or defeats the object of the statute! (See Craies: on Statute Law, 6th Ed Pp. 70, 86-87 and 95). The application of the second meaning would in my view result in unreasonableness and absurdity. The adoption of this construction, would result in defeating the object of this part of the Constitution . rather than carrying it into effect. Such an interpretation would mean that virtually every class of commercial contract, the law of torts and all other laws containing a pecuniary element would be effectively excluded from the jurisdiction of this Court. Indeed, it is difficult to conceive of any civil law which is totally devoid of a financial element, having regard to the sophis­ tication of modern commercial dealings and essentially free enterprise. economy. It is clear, therefore, that the adoption of the second meaning would denude this Court of all meaningful powers and render it almost a Nullity. Such an intention cannot be imputed to the Legislature in the light of the historical factors which led to the establishment of this Court, the object of the Act and surrounding circumstances. Had the Legislature intended such a drastic curtailment of powers of this court, it would have said so in express and unambiguous terms. ' The object of the Act which gave birth to this Cou.it was the Islamisation of the existing laws. Hence, the Court was empowered to examine these laws in the light of the Holy Quran and Sunr.ab. The exclusion of the fiscal laws from the jurisdiction of this Court was, in my view, to avoid the consequent vacuum that could have resulted in the financial pystem of the government in the event of a sudden change in such laws. It does not mean that the Legislature intended to maintain the Status quo in the legal system of the country, which would be the practical result of the adoption of this second meaning, thereby clearly defeating the intention of the Legislature. The establishment of this Court together with the resultant change in the structure of the judiciary was very drastic indeed. 'Clearly, it was not an exercise in futility. The second meaning, fhere, fore, in my opinion cannot be applied to Article 203-B (c) of the Constitution. I am, consequently left to consider the third meaning of the word "Fiscal". This meaning is an established one. For example, the Black's Law Dictionary states one of the meanings of "Fiscal" to be ''public finances "of a government." In the Corpus Juris Secundum V. 36, P. 491 the following entry appears after the word "Fiscal." "While the word "Fiscal" as an adjective may be used to mean of or pertaining to financial matters generally, financial, pertaining to finance relating to accounts or the management of revenue, the term Is com­ monly used to signify of ot pertaining to public treasury of revenue; of or pertaining to treasury or public finances of government public as distinguished from private finances and revenue : (Italics mine) These citations are sufficient to establish that the word "Fiscal" is commonly used in the sense of matters pertaining to, the public finances of a government. The term "Public Finance" is defined as follows: "The financial operations of all levels of government. Such operations include budgeting. Taxing, appropriating, purchasing, borrowing, dis- KiirciniY fun/fo «n/i flAiiiatinn ti«A «•••»« Anjt« fSaloan and It shows that the word "public finance" is not restricted to public/'' revenue, but covers all the financial operations of a government. Accord­ ingly, if the word ''Fiscal Law" in the Article 293-B (c) of the Constitution is construed as "Laws relating to the public finance of the government." it will not be confined to the laws" relating to the levy and collection of" taxes and fees", but will encompass every law which relates to the financial operations of the government, such as the laws relating to government loans, securities etc. This construction, in my opinion, is the proper one to be applied in Article 203-B (c) for the following reasons : (0 The rejection of the first two meanings on the grounds mentioned herein-before implies the necessary acceptance of the third. (») This construction accords with the popular sense in which the word •"Fiscal" is used as stated above. (iii) The word "Fiscal" so construed accords with its economic usage, In the "Dictionary of Economics and Business" (By E.E. Nemmers, 1976. LittleSeld, Adams P-172) the term "Fiscal" has been defined as follows: (1) Pertaining to financial affairs. (2) More recently used in a special sense as opposed, for example, to "monetary " Then it refers to the "fisc" that is, the financial aspect of the government." (tv) This construction is free from the defects which may result from the first two constructions as has been mentioned in the foregoing dis- • eussion. It does not result in tautology, nor in , unreasonableness or absurdity. (v) It will not be irrelevent to take into consideration Article 73(2) of the Constitution which defines a similar term, namely, "Money Bill". The Article reads as follows :— "For the purpose of this chapter, a Bill of amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely:— (a) The imposition, abolition, remission,, alteration or regulation of any tax. (b) the borrowing of money, or ihe giving of any guarantee, by the Federal Government, or the amendments of the law relating to the financial obligations of the government. (c) The custody of the Federal Consolidated fund, the payment of money into, or the issue of moneys from, that fund. (d) The imposition of a change upon the Federal Consolidated Fund or the abolition or alteration of any such charge. (e) The receipt of moneys on account of the public accounts of the Federation, the custody or issue of such moneys; (/ ) The audit of the accounts of the Federal Government ; and (g) any matter incidental to any of the matters specified in the proceedine paragraphs." The same difinition of the word "Money Bill" has been given in Article 115 (b) of the Constitution in relation to the provincial money bill. Now, the word "monev bill" although synonymous in meaning to financial laws in general, have been given a restricted meaning in the said Articles. That is ,to say, these words have been limited to matters relating to the financial operations of ihe government, as opposed 10 private finan­ cial rnauers. According to the principles of interpretation of statutes these Articles may be used as an aid to construe the word "Fiscal Laws" a term which is similar in import to "money bill". The Privy Council ia Black wood V. R. has laid down the following rule: - "One of the safest guides to the construction of sweeping general words _ which it is difficult to applv in their full literal sense is to examine other words of like import in ;he same instrument, and to see what limitations must be imposed on them. Jf it is found that a number of such expressions have to be subjected to limitations or qualifications, and that such limitations or qualifications, are of the same nature, that forms a strong argument for subjecting the expression in dispute to a like limitation or qualification." (Craies : On Statute Law : Op cit. p. 177 Ch, 9; 6) In the instant case, by construing the word "Fiscal Law" as "matters relating to public finance of the government" no limitation is being imposed on the literal sense of the word. We are merely adopting one of the dictionary meaning of the word which is equally possible literally, and in the light of the above cited principle, Articles 73 (2) and 115 (2) of the Constitution art reasonable grounds for, at_ least, prefering one dictionary meaning over the other. The upshot of the above reasoning is that, th& word-"Fiscal Law" in • Article 203-B (c) of the Constitution are, in my opinion, restricted to the jlaws relating to the public finances of the government, and do not extend to jprivate financial transactions Accordingly section 58 (d) of the Transfer jof Property Act falls within the jurisdiction of this Court, which is empow­ ered to examine its vires in the light of the Holy Quran and Sunnah. The judgment in this case was reserved on the question of jurisdiction 'without fully hearing the parties on the merits. In the light of foregoing I am of the opinion that this petition cannot be dismissed on the point of jurisdiction. This case, accordingly, should be decided on its merits. TQM) " Petition dlsmitsed by majority of five to one.

PLJ 1983 FSC 37 PLJ 1983 FSC 37 (Appellate Jurisdiction) Freteat : aftab hussain, C. J. & malik ghulam Ail, J FA2AL DIN—Appellant vertut TAJ DIN—Respondent Cr. Appeals No. 67/L of 1981 & 24/L of 1982, decided on 6-10-1982. (I) Offence of Ziat (Eafbrcemeat «f Hadood) Ordimace (VII of 1979)— ——Ss. 10 (3) & 20 and Pakistan Penal Code (XLV of 1860) S.—302— Ztna bil 'jabr and murder—Offences of—Court of Session—Trial by for offence under any other law—Sentence under Ordinance—Appeal against— Held: Court of Session, while trying for offences under Ordinance, to be com­ petent to try for offences under any other law also and to award punishment thsrefor—Held feurther ' Trial and conviction by Sessions Judge for Sny offence inter alia under PPC to become punishable under Ordinance for purposes of appeal to Federal Shariat Court—Sessions Judge in case trying respoident both under S.10(31 of Ordinance (VII of 1979) and S. 302 of PPC— Held: Sessions Judge being competent to try for both offences with which respondent charged, while trying case under Ordinance, sentence to be passed by such Court for offences under PPC also—He'd further : Appeals against acquittal under section 10(3) of Ordinance and under section 302 of PPC to be competent in Federal Shariat Court. [Pp. 44 & 45]G, H&M . •fii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10(3) and Pakistan Penal Code (XLV of 1860)—S. 302— Zina bll jabr— ' Offeice of—Eye-witnesses finding victim lying dead in closed room with her Shalwar on her knees while respondent found putting on his shalwar in same closed room—Chemical Examiner's reports proving deceased having been subjected to zlna bll jabr and her shalwar stained with semen—Injuries on person of deceased also sufficient in ordinary course of nature to cause death— Held: Cas'e proved against respondent to hilt. [P. 43] D (Hi) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10(3)— Zina bil jabr —Offence of—Sentence for—Respondent obviously committing zinabil jabr with victim (found virgin by doctor inspite of her clear resistence— Held : Demands of justice to be met only if extreme punishment be awarded to respondent. [P. 46] N (|t) Criminal Procedure Code (V of 1898)—

S. 161 — Examination of witnesses by Police— Held : Mere fact of state­ ment of witness having been recorded on next day of occurrence after body of deceased having been sent for post mortem examination, not to be fatal to prosecution case. [P. 43] B (t) Criminal Trial—

Witnesses—Related to both parties—Evidence by—Witnes related to both parties and (heir evidence quite straightforward and having material to make their veracity or testimony doubtful coming on record— Held : In absence of evi dence of disliking or bad blood between witnesses and accused before occurrence, testimony of such witnesses not to be disbelieved. [P. 43] C (ri) First Information Report—

Recording of after investigation—Effect of— Held: Mere fact of FIR having been recorded after investigation not always to throw doubt on testimony of eye-witnesses—Criminal—Trial—Investigation—Criminal Procedure Code (V of 1898)—S.$l54. [P. 44] E (Tii) Criminal Procedure Code (V of 1898)—

S. 537—Error or omission in charge or other proceedings—Effect of— Held: Trial not to be vitiated by any error, omission or irregularity Inter aHa]ln charge unless same causing any failure of justice—HeJd further ; Zlna bll jabr and murder in case being simultaneous and part of same transaction, no two seperate challans to be required to be filed. [P. 44] E (Till) Criminal Trial— ——Witness—Veracity of—Investigating Officer—Evidence by—Held: Mere fact of same person in previous FIR recorded by Investigating Officer found innocent not to prove such person having been illegally involved by such officer in collusion with any party—Held further : Such fact even if proved on record not to lead to conclusion regarding falsely implication of 'accused' in case. [P. 42] A (ix) Interpretation of Statntes—

Intention of Legislature— Held: While determining general object of Legislature or meaning of its language in any particular passage, intention appearing to be most in accord with convenience, reason, justice and legal principles to be adopted as no intention to produce unreasonable result to be imputed to statute if some other construction be available— [P. 45] J Maxwell on Interpretation of Statutes— 12th Edn. 199 ref. (x) Interpretation of Statutes—

Scheme of legislation— Held: Construction facilitating smooth working of legislation established by Act to be adopted and where two possible constructions be available, more reasonable to be chosen and unreasonable or artificial to be avoided. [P. 45]KdL Maxwell on Interpretation of Statutes —12th Edn.—Pp. 201 & 203 ref. Sheikh JjazAli, Advocate for the State. Mr. M. Jqbal Bhatti, Advocate for Respondent. Date of hearing : 18-7-82. judgment Aftab Hnssain. C. J.—This order will dispose of Criminal Appeals No.67/Lof 1981 and 24/L of 1982 since they arise out of the same order of acquittal of the respondent pissed by Syed Muhammad Rafiq Shah, Additional Sessions Judge, Lahore on the 3rd of October 1981 . The appeal of 1981 was filed by the complainant. Subsequently the other appeal bearing No. 24/L of 1982 was filed on behalf of the State. The State appeal has not been admitted so far. However all the three counsel namely Mr. Rafiq Ahmad Bajwa for the complainant appellant. Mr. Ejaz All on behalf of the State and Mr. M. Iqbal Bhatti for the respondent were heard. 2. The charge against the respondent is under section 10 of Ordinance . VH of 1979 for committing rape on Afst. Rajan deceased and under section 302 PPC for murdering her. The prosecution case is thai the respondent Taj Din is the husband of Msf. Fazlan daughter of Af.M.-Fa!ima Bibi, P.W. 4 and sister of Fazal Din, P.W. 9. Mst. Rajan deceased was also the daughter of Mst. Fatima and sister of Fazal Din and consequently was the wife's sister of Taj Din, respondent. Taj Din alongwith his wife and Mst. Fatima Bibi alongwith her daughter Mst Rajan were living in the same house which had two rooms. One room out of th-ese two was occupied by Mst. Fatima Bibi and the other by Taj Din. On the 14th of November;. 1980 Mst. Fatima Bibi had gone to the house of Ranjba Sbeikh for offering condolence where Fazal Din, P.W. 9 here son, inquired from her a& tu who bad been left in the house to look after Mst. Rajan. She told him that she was with Taj Din respondent. She also informed him that Mst. Fazlaa wife of Taj Din had gone that day to Sahiwal. She directed him to go to the house and inquire about Mst. Rajan. 3. Fazal Din, P.W. 9 went to the house of Mst. Fatima alongwith Siraj Din, P.W. 8 and Sadiq (not produced). When they reached the bouse they found that the door of the room was bolted from inside and the light was off. It was 9.00 or 9-15 P.M. at that time. They called out Taj Din respondent and Mst. Rajan 2 or 3 times and receiving no reply pushed the door and entered the room. Fazal Din struck a match and Siraj Din lighted a Diya with it. In the light they saw Mst. Raian lying dead on a cot and found Taj Din respondent putting on bis Shalwar. Blood was coming out from her riose and mouth. There were signs of scratches on her throat. A piece of cloth was in her mouth. Her shalwar was on her knees and her vagina was wet and had signs of semen. They took the piece of cloth from the mouth of the deceased and put it on the cot. They caught hold of Taj Din, respondent on whose face they saw signs of scratches as well. They raised hue and cry on hearing which Mst. Fatima Bibi, P.W. 4, Muhammad Shafi. P.W. 7 and Din Muhammad (not produced) also arrived there. 4. Fazdl Dm went alongwith Muhammad Shafi to inform the Police who met them at a distance of 2 Furlongs frorn the house. The statement of Fazal Din, P.W. 9 Ex-P.A. was recorded by Muhammad Ajmal, S. I. , P.W. lion the. basis of which formal FIR, Ex-P.A./ was recorded. 5. The Sub-Inspector on reaching the spot prepared the injuries state­ ment (Ex.P.K.) of Mst. Rdjan deceased. He sent the dead body for autopsy to the hospital. He took into possession cot, P. 3, Gadda P. 4. piece ol" cloth P. 5 by memo Ex.-P. D. By another memo Ex.-P. F. he took into possession another piece of cloth P. 7. He also took into possession shalwar P. 6 of Taj Din respondent by memo Ex. P. E. Abbas Ali, Foot Constable had escorted the dead body, to Mayo Hospital . After his return he handed over to the Sub Inspector. Kurta P. 1. (blood stained) shalwar, P. 2 (blood stained) of the deceased Mst, Rajan who took them into possession vide memo Ex. P. C. 6. dc. Tahir Anis, Deputy Police Surgeon, P.W. 10 conducted the post mot em examination of Mst. Rajan ai 12-30 p.m. on the 15th of November, % 1980. He found that she was moderately" built, her breasts had developed and auxiliary and pubic hair were scanty. Pupils were dilated and conjunctive were congested. Her face, palm and nails were livid. Blood stained froth was present over nostrils and left side of mouth. She wore shirt and shalwar. He suspected on observation that Blood/semen stains were present over the internal part of the shalwar. He found the following external injuries on her person :— (1) Depressed contused area of skin 4x2 c.m., over upper left front part of neck extending horizontally oblique. (2) Depressed contused area of skin 4.5x2 c.m. over upper right fro part of neck extending horizontally oblique. (3) There was congestion over mucosal surface of both lips with multiple scratches over left cheek, maxilla on both oral angles. (4) Multiple contused abrasions front of both wrists. On disection, soft tissues of neck was found markedly congested against injuries No. 1 and 2. Membrans surface was congested, pleura showed pin-point bleeding spots. Inner surface of larynx and treachea was congested and showed free blood. Hyoid was intact. Both the lungs were gener­ ally congested ; Right side of heart contained blood, left was empty. There was venous engorgement, of blood vessels. Inner surface of mouth and pharyn were congested. Stomach contained 150 c.m. semi-digested diet. Small intestines contained diet, large intestines and bladder were empty. Liver, spleen, and didneys were congested. Hymen showed fresh tears. Area showed congestion and collection of blood. Uterus was empty. 7 He took two veginal swabs which were sent in a scaled container to the Chemical Examiner for detection of semen. He received the positive report Ex P.M. from the Chemical Examiner aid sent the same on 2-12-1980- to the DIG, Police. 8. All the injuries according to the medical report had been caused by 'blunt means and were antemortem'. Injuries 1 and 2 were sufficient in ordinary cjurse of nature to cause death through asphyxia by throttling and smothering. Probable time between injuries and death was a few minuter and ihat bitween death and postmortem 12-18 hours. 9. On the same day at about 3.00 p.m. he examined Taj Din respon­ dent who was brought in handcuffs by the Badami Bagh Police. There were multiple scratches over his left cheek in area 8x6 c.m. which were caused by finger nails about 12 to 24 hours prior to the examination and were simple in nature. On bis medical check up he did not find any reason which could suggest that the respondent was not capable of performing sexual intercourse. 10. Two sealed parcels were given by Mohammad Ajmal, ASI to Mohammad Akbar, Head Constable for safe custody in the Malkhana on the 15th of November, 1980. Mohammad Akbar handed over these two parcels to Mohammad Riaz, Constable, P.W, 5. on the 16th of November, 19SO. The version as to what happened to these parcels is rather discre­ pant. According to Mohammad Akbar, P.W.2 Mohammad Riaz, Constable brought back these parcels from the office from the Chemical Examiner on 17-11-1980 and he kept them .in the Malkhana in safe custody. As per statement of Mohammad Riaz, P.W. 5 who was not cross examined, he delivered them intact on the 16th of November, 1980 to the office of the Chemical Examiner. It appears from the Chemical Examiner's report, Ex. P.M. that he had received two sealed parcels on the 17th of November, 1980 through Mohammad Riaz, Constable which contained Shalwar and a piece of cloth. The Shalwar was found stained whh semen while the piece of cloth was stained with blood and its pieces were sent to the Serologist for determination of origin of blood. The report of the Serologist, Ex. P.M., proves that the blood was human. 11. In view of Ex. P.M. and its entries the statement of Mohammad Riaz that he has delivered to the office of the Chemical Examiner the two sealed parcels the same day that he obtained them from the Malkhana, is •correct and the evidence of Mohammad Akbar, P.W. 2 to the effect that these parcels were brought back on' the 17th November, 1980 is either incorrect or he has confused the parcels of this case with parcels of some other case. . 12. The prosecution case is based upon the evidence of Mst. Fatima Bibi, P.W. 4 mother of the deceased, Mohammad Shafi, P.W. 7, Siraj Din, P.W, 8 first cousin of the deceased, and Fazal Din, P.W. 9 brother of. The deceased. Fazal Din, P.W. 9 and Siraj Din, P.W. 8 explained that they came to the house on the day of occurrence at about 9.00 or 9.15p.m., and ound the room belted from inside. There was no light. Fazal Din called Mst. Rajan but finding no reply pushed the door and entered the room and on lighting a match stick with which a dlya was lighted, found Taj Din stand­ ing on the cot and trying to wear his Shalwar and found Mst. Rajan lying dead in the manner already stated in the above mentioned facts. Mst. Ghulam Fatima, P.W. 4 and Mohammad Shafi. P.W. 9 later on came to the spot after hearing the alarm from the house of Taj Din and found Taj Din being held by Siraj Din, Fazal Din aud Sadiq and the deceased lying dead, Mohammad Shafi is also the witness of recovery made by memo Ex. P.D. Siraj Din proved the recovery memos Ex. P.E. and P.F. and stated that the recoveries were made in his presence. 13. The respondent in his statement under section 342 Cr. P.C. denied that he had committed either of the offence. He stated that the entire story about his involvement was concocted and he was involved falsely because bis inlaws disliked him due to his~ ugly face as he was one eyed and of block colour and short statured. They wanted him to divorte his wife Msl. Fazlan. He was further examined by this Court on 18-8-1982 and he was asked about his being caught from the spot where the dead body was lying and that the Doctor found injuries on his face but he answered in the negative. 14. The witnesses denied the suggestions that the inlaws of.the res­ pondent disliked him on account of his alleged ugly face. 15. The respondent produced in defence Sher Mohammad ASI. Badami Bagh. Lahore in order to prove that in some otb«r cases registered by Mohammad Ajtnal it was found on later investigations that they were ncorrectly registered and that SHO, P.W. 11 had been suspended from the service on the 27th of December, 1980. The witness first referred to FIR No. 19 but it was a case which was initially investigated by Mohammad Sadiq, DSP and then by Mohammad Safdar S.P. and after investigation it was cancelled o,n 28-1-1981. No reference is made to anything done by Ajmal Qureshi. He then stated about FIR No. 17 that it was registered against a number of persons out of whom only five were challaned and others were found innocent. The third ease to which he referred is regard­ ing an application sent by DSP, Naulakha from one Ahmad Din. Yet another application was received from DSP, Naulakha from the same hmad Din and it was sent to Incharge, Police Station, Badami Bagh who returned it after giving his remarks. Ajmal Qureshi was suspended on the 27th of December, 1980 under order of DIG, Lahore but the reason of suspension was not given in the Roznamcha. 16. The learned Additional Sessions Judge referred to some discrep­ ancies between the statements of the prosecution witnesses and on the basis of those discrepancies.found these statements to be contradictory. He held that since the Investigation Officer (1) did not mention the scratches on the face of the re;pond,ent in Ex. D.C. (inspection note) and his report under section 173 Criminal Procedure Code, (2) had not examined the neighbours from the locality and (3) as per statement of D.W. 1 had been suspended from service on account of his being in the habit of involving innocent persons in criminal cases by colluding with parties, the case was not free from doubt. Moreover all the witnesses belonged to the same Blradarl and except Mohammad Shafi, P.W.7 all were closely related, the scratches could have been made on his face to implicate him in the case and for the same reason his Shalwar could also have been easily stained with i em en, as such the guilt was not proved by strong and convincing evidence. 17. The order of acquittal is partly based upon misreading of th< evidence. There is nothing in the statement of D.W. 1 that Mohammac Ajmal, P.W. II was suspended because of his being in the habit of involv­ ing innocent persons in criminal cases in collusion with parties. It will be clear from the analysis of the evidence that it does not prove any such blame against Mohammad Ajmal, P.W. 11. None of the cases referred to by Sher Mohammad, D.W. 1 established any blame against Mohammae Ajmal. The mere fact that some FIR was recorded by him and that some of the persons in that FIR were found innocent on investigation and the case was :ancelled could not prove that Mohammad Ajmal had involved any person in that case illegally in collusion with any party. Even if this had been proved on record it would not have led to the conclusion or be presumed that the respondent must also have been falsely involved in the case. 18. It is true that no reference was made to the scratches in the document regarding the first inspection but the omission of this fact from the report under section 173 Cr. P.C. is absolutely irrelevant since much before the submission of that report the respondent had been medically examined and the scratches had been found on his face. Similarly the find­ ing that Shalwar might have also been stained with semen later is only conjectural. Moreover this is not even the case Jo f the respondent. 19. The learned Additional Sessions Judge came to the conclusion that the statement of Fazal Din was recorded on the next day but this is tlso not fatal to the prosecution case because the mere fact that the –police recorded the statement next day although the body had already been sent by the police for postmortem examination would not lead to the conclusion that the four witnesses are not telling the truth. 20. According to Siraj Din he lighted a Diya in the room whereas Fazal Din lighted a match stick but the Investigating Officer, P.W. 11 stated that there was electric light in the room. This was held a ground for disbelieving the witnesses. But. this fact by itself could not be taken against the prosecution since on such question whether the room was fitted with electricity was put to any other witness nor was any witness asked to explain as to why it was found necessary to light a match or a Diya when Fazal Din could easily have switched on the light. If such a question had been put either to P.W. 8 or to P.W. 9 they might have given an explanation. It is possible that the electricity might not be functioning at this time on account of some defect. Nothing^rurns on this. 21. The other defect pointed out is that when Fazal Din talked to Mst. Fatima she was in the court-yard of the house of Ranjha but he did not see Mohammad Shafi and Din Mohammad. However Mohammad Shafi stated that he, Haji Din Mohammad and Mst. Fatima were sitting on. The road side when they heard the alarm. This is neither a contradiction nor at all material. Mohammad Shafi did not make a reference to the talk between Mst. Fatima and Fazal Din which means that at that time he was not present. He did not state how long he and Mst. Fatima had been sitting on the road side. It cannot be deemed to be a contradiction unless it was proved that when Fazal Din talked to Mst. Fatima she was sitting on the road side and not in the courtyard. 22. In view of the above discussion the finding of the learned Additi onul Sessions Judge cannot be sustained. We have considered the case very carefully. Mohammad Shafi is clearly independent witness because he is not related to the parties. The others, if closely related to Mst. Rajan are also closely related by marriage to Taj Din respondent. There is no reason to believe in the absence of evidence that there was any disliking or bad biood between them and Taj Din before the occurrence. There is no reason why in these circumstances they should falsely involve the respondent. The evidence of these four persons is also quite straight forward and nothing material to make their veracity or testimony doubtful has come on the record. 23. It is proved that the respondent and Mst. Rajan deceased were found in the same room which was closed. Mst. Rajan was lying dead and her Shalwar was on her knees while the respondent was found putting on his Shalwir. The Chemical Examiner's report Ex. P.H, proves that the deceased had been subjected to rape or Zina bll Jabr. The Chemical Examiner's report Ex. P.J. further proves that the Shalwar of the a respon dent was also found stained with semen. The medical report proves that Mst. Rajan was murdered by strangulation and the injuries on her person were sufficient in the ordinary course of nature to cause death. The case is proved to the hilt against the respondent. 24. The learned counsel for the respondent however, argued that there was no reason why Fazal Din should ask his mother as to who was left at the house and why should he take two persons with him. This argument would be of no avail since it is explained by Fazal Din that Taj Din some­ times went out to see the T.V. meaning thereby that he was not a person to be relied upon for looking after a young girl who is left alone. As regards taking two persons wiih him, there is nothing'strange in it because of" the social contact and relationship between those two persons and Fazal Din. He might have asked them to come with him for no specific purpose but to have with him somebody to talk to. 25. He also argued that the First Information Report was recorded after investigation. This appears to be correct but as already stated this cannot throw doubt in the circumstances of the case, on the testimony of the witnesses. 26. The learned counsel argued that according to the First Informa­ tion Report all, the three persons had entered the room after breaking the door but this was changed to pushing the door since no door was found to be broken. There is no merit in this objection since the explanation of Siraj Din, P.W. 8 proves that the door was bolted from inside and when pushed by force the bolt was broken. 27. The absence of any other witness from the neighbourhood is hardly material in view of the fact that Taj Din was caught by Fazal Din and his two companions before Mst. Fatima and two other persons arrived there, It was conceded by Mohammad Shafi that other persons also came at the spot. The neighbour, if any, could only have come Liter after Taj Din, had been caught by Fazal Din etc. Mohammad Shafi an independent witness proved the later facts. 28. The learned counsel submitted that this is a case of misjoinder of charges and there should have been two challans. This argument is without force since obviously the rape and the murder are simultaneous and part of the same transaction. Moreover the trial cannot be vitiated in view of •ection 537 Cr. P.C. by any error, omission or irregularity Inter alia in the charge unless such error etc. causes any failure of justice. 29. The learned counsel also submitted that an appeal against acquittal filed by the State was pending in the High Court but this would not take away the jurisdiction of this Court to deal with this appeal if it is otherwise competent. . , ' "30. Section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance provides that the provision of the Cr. P.C. shall apply mutatis mutandis in respect of cases under the Ordinance and if it appears in evidence that the offender had committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefor, be convicted and punished for that offence, provided that an offence under this Ordinance shall be triable by a Court of Session and an appeal shall lie to the Federal Shariat Court. 31. The offence under section 302 PPC is certainly an offence under a Law other than the Ordinance but the Sessions Judge being competent to try both the offences with which the respondent is charged, be could pass a sentence in a case tried by him under the Ordinance for an offence under the PPC also. What he could do can also be competently done by an appellate Court. Now Proviso 2 of subsection (1) of section 20 provides that "an offence punishable under this Ordinance shall be triable by » Court of Session" and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court . Proviso-I of the same subsection permits the com­ petent Court (Sessions Judge in the present case) to try the offence under any other law also and award punishment thereunder. By virtue of this provision the trial and conviction by the Sessions Judge of any offence Inter alia under the PPC becomes an offence punishable under this Ordinance for the purpose of appeal to the Federal Shariat Court . This can be the only reasonable interpretation of the two provisos of subsection (1) of section 20 of the Ordinance. Any other interpretation would lead to an unreasonable result that the order of conviction under two different statutes as a result fo one trial may be appealable in two different forums. 32. The established rules of interpretation even in cases where some other construction available is as follows : (1) In determining either the general object of the Legislature, or th« meaning of its language in any particular passage, it ia obvious that the intention which appears to be most ia accord with conveni­ ence, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. "An inten­ tion to produce an unreasonable result is not to be imputed to statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the, legislation and produce a wholly unreasonable result." We must "do some violence to the words,' and so achieve that obvious intention and produce a rational construction. (Maxwell on The Interpretation of Statutes, 12th Edition, P. 199). (2) Where possible a construction should be adopted which will Xacili-l tate the smooth working of the scheme of legislation eslabiislwdrby the Act. which will avoid producing or prolonging artificiality inl the law, and which will" not produce anomalous results. (Ibid. P. 201). (3) Nor only arc unreasonable or artificial or anomalous .constructions to be avoided, it appears to be an assumption (often unspoken) oft the courts that where two possible constructions present themselves, the more reasonable one is to be chosen. (Ibid P. 203). 33. It would lead to inconvenient, rather anomalous results if two -different Courts one on conviction under one statute and the other convic­ tion under another statute are held to have jurisdiction to appreciate the same evidence in which there is possibility of arriving at different conclusions. Such a construction should be avoided. We are of the view that these appeals are competent acainst the acquittal under section 10(3) of the Ordinance as well under section 302 PPC. The mere fact that an appeal has been filed before the High Court also would not take away the jurisdic­ tion of this Court. It appears that the State has filed that appeal by way of abundant caution. 3.4. It was also argued that the question of arrest of the respondent and the injuries on his person was not put under section 342 Cr. P.C. to the respondent but this defect is removed since this Court examined the respondent again in the interest of justice under the above section and after writing his additional statement gave him an opportunity to produce defence which he declined to produce. None of the arguments of the learned counsel, have, therefore, any force. 35. The respondent obviously commit:ed zlne-btl-jabr with a girl who vas found virgin by the doctor since he found the tears on her vagina juite fresh. It appears by the way her mouth was gagged and the responlent himself received injuries (hat the offence was committed inspite of ^resistence by this girl. The demands of justice can be met only if the 'extreme punishment is awarded to the respondent. We, therefore, allow the complainant's appeal No. 76/L of 1981, set aside the order of acquittal and direct that for the offence under section 302 PPC he shall be hanged by the neck till he is dead and for the offence under section 10(3) of Ordinance VII of 1979 he shall undergo rigorous imprisonment for a period of 25 years and whipping numbering 30 stripes. The punishment of whip­ ping shall be administered at some place in the Bazar, Badami Bagb, Lahore and the sentence of imprisonment shall start if as a result of appeal before the Supreme Court if any, the sentence of death is set aside. The State's Appeal No. 24/L of 1982 thus stands disposed of. A copy of the judgment is given to the respondent and he is directed to file an appeal in the Supreme Court of Pakistan, if he so wishes. (TQM) Appeals allowed

PLJ 1983 FSC 46 PLJ 1983 FSC 46 (Appellate Jurisdiction) Present : aftab hussain, C.J, zahoorul haq, muhammad siddiq, maulana ghulam ali & Put muhammad karam shah, JJ UMAR FARIN—Appellant Versus & A/st. JUMIASHAH—Appellant Versus & MUHAMMAD ZAHID—Appellant Veasus THE STATE—Respondent Jail Cr. Appeals No. 159/1 of 1981 & 33/1 of 1982 &Cr. App. No. 25/P of 1981, decided on 9-10-1982. (i) Offence of Zlna (Enforcement of Hudood) Ordinance (VII of 1979)—

Ss. 10(2), 16 & 19(2)—Zina liable to Taazir— Offence of—Confession— Ret ration of—Conviction—Basis for—Appellant in ; second appeal devloping illict intimacy in' absence of her husband with other accused and finally leaving her four minor children all alone and remaining absent from them and her house for considerable period—Police arresting both accused together on return of husband of appellant from Saudi Arabia and registration of case after about a. month—Confessional statements of both appellants recorded before Magistrate but both accused resiling from same during trial—Closely related witnesses including daughter, father and real borther of 2nd accused having no anmius with her, deposing against her— Held : Guilt of appellants established beyond any doubt- Held further: Independent corroboration being available on record, conviction to be passed even on retracted confession of appellants— Appellants having been committing offence u/S. 10(2) of Ordinance resulting in pregnancy of 2nd accused, conviction and sentences u/S. 16 set aside and both accused convicted u/S. 10(2) of Ordinance. [Pp. 54&55]DE,FAG (ii) Confession—

Retraction of—Evidentiary value of—Appellants making no allegation or complaint to proper authorities regarding third degree methods adopted by police and confessional statements having been obtained through coercion, threats or promise and levelling such allegations only at end of trial— Held: mere allegation in their statements u/S. 342, Cr. P.C. not to bssuffi-ienc to discard confessional statements made before Magistrate unless such allegations be supported by other circumstantial or documentary evidence —Evidence Act (I of 1872)—S. 24. - [P. 51] A (Hi) Confession— ——Recording of—Magistrate complying with necessary legal formalities before recording confessional statements of accused persons— Held'. Mere fact of such Magistrate having not clearly disclosed his identity to accused not to make <their 'confessional statements involuntary— Criminal Procedure Code (V of 1898)—S. 164 [P. 53] B (!t) Confession—

Recording of—Confessional statements of accused recorded promptly without any delay and Magistrate also complying with necessary legal formalities before recording same— Held: Mere omission of certain questions in writing not to be sufficient to vitiate such statements other­ wise proved satisfactorily—Criminal Procedure Code (V of 1898)— S. 164 [P. 53JC (v) Confession—

Retraction of—Conviction on basis of— Held : Confession if voluntarily and true, accused to be convicted even same retracted—Criminal Trial. [P. 54] D Jail Criminal Appeal No. 159/1 of 1981 Afr.,Javed Nawaz Chaudhary, Advocate for Appellant. Mian Muhammad Ajmal, Assistant Advocate-Genl., N.W.F.P. for the State. Jail Criminal Appeal No. 33/1 of 1982 Nemo for Appellant. Mian Muhammad Ajmal, Assistant Advocate-Genl., N.W.F.P. for the State. Criminal Appeal No. 25/P of 198; Nemo for Appellant. Mian Muhammad Ajmal, Assistant Advocaie-GenI , N.W.F.P. for the State. Date of hearing ; 22-3-1982. judgment Muhammad Siddiq, J.—According to the prosecution the facts of the case briefly are that Mst. Jumiasbah, appellant was married to Muhammad Zahid, complainant (P.W. 8) about 15/16 years prior to the occurrence. Two sons and two daughters including Mst. Hanifa (P.W. 7) were born out of this wedlock. At the relevant time complainant Muhammad Zahid had gone to Saudi Arabia and in his absence bis wife Mst. Jumiashah, appellant was living with her children in the house of her husband in the village Dankolla. It is alleged that Umar Farin appellant developed illicit intimacy with Mst. Jumiashah, appellant and used to come to her house at night. On the night of occurrence i.e., one month prior to the lodging of the First Information Report i.e., 7-2-1981. Umar Farin, appellant came to the house of Mst. Jumiashah, appellant and after some time both left the house and went away. At the time of their departure except Mst. Bibi Hanifa (P.W. 7) other children of Mst. Jumiashah were sleeping. Mst. Jumiashah is alleged to have informed her daughter Mst. Bibi Hanifa (P.W. 7) that they should go to sleep and that she would be coming back very soon. A lantern (P. I) was burning at that time and Mst. Bibi Hanifa (P.W. 7) claims to have identified both the accused persons in the light of the lantern Mst. Bibi Hanifa has further alleged that before their departure accused Umer Farin also laid with her mother Mst. Jumiashah in her coi. However Mst. Jumiasha did not come back 10 her house. . At the relevant time her husband Muhammad Zahid (P.W. 8) was in Saudi Arabia . H_- wjs informed by his paternal aunt's son through a letter that his wife Mst. Jumiashah had been abducted by Umer Farin, accused. On the receipt of this information he returned from Saudi Arabia and on 5-2-1981 he reached his village. On inquiry he was informed by his daughter Mst. Bibi Hanifa (P.W. 7) how Mst. Jumiashah bad been abducted by accused Umer Farin. He then on 7-2-1981 went to Police Station Aluch where he lodged the First Information Report (Ex. P.A). A.S.I. Maulvi Jami (P.W. 9) after recording the report reached the spot on the following day and prepared the site plan (Ex. P.B). He took into possession one lantern (P. I) produced by Mst. Bibi Hanifa vide mimo (Ex. P:W. 3/1). He recordedi the statements ot the witnesses under section 161 Cr. P.C. He received information iha: boib the accuse were present in Mansehra. Hazra Division. Accordingly after obtaining permission from S.P. Swat he started tor Mansehra in the company of two constables and Rehman Shah (P.W. 6). broiher of Mst. Jurniashah, abductee. He however could not find the accused persons there. He was informed there that the accused persons had left for distiict Swat. Accordingly he returned from Hazara and while proceeding towards Swat near the village Besham, he saw both the accused persons standing on the road side and giving signals for stopping the Suzuki, in which the Police party was travelling. Rehman Shah (P.W. 6) the real brother of Jumiashah identified both the accused and told the Police Officer accordingly. The Police Officer stopped ihe Suziki and arrested both the accused persons. At the time o their arrest the Police Officer recovered one taps-recorder (P. 2) two silver bangles (P. 3) one necklace (P. 4) from the personal jsach of Mst. Jumiasha nd took them into possession vide memo Ex. P.W. 6/1. He also pre the site plan (Ex. P.B. 1) where the acaiseJ persoro were arrested. The Investigating Officer produced both the accused persons in the Court of Mr. Nacemul Hadi Khan, S.D.M. Alpuri, District Swat, where the confessional statements of both the accused persons were recorded (Ex. P.W. 1/1 and P W 1/4) r-.';oi;:ivsly. After recording their confessional statement boih the accused persons were sent to Judicial lock up. After the usual investiga­ tion the Investigating Officer cballaned both the accused persons. They were tried by the Sessions Judge, Swat. 2; In support of its case the prosecution produced 9 witnesses. Mr, Naeemul Hadi Khan. A. C. (P. W. 1) Alpuri, recorded the confessional statements of both the accused persons. Sber Muhammad Khan, S. H. O. (P. W. 2) Aluch challaned both the accused persons Gul Zada (P. W. 3) has attested be recovery memo (Ex, P. W. 3/1) of lantern (P. 1). Moulvi Sahib-ud-Din (P. W. 4) is the Pesh Imam of village Dankool and be had performed the nikah -of Mst. Jumiasha accused with Muhammad Zahid (P. W. 1) about 15 years prior to the occurrence. Liaqat Shah (P. W. 5) is the father of Mst. Jumiashah, accused. He has supported her nikah with the complainant Muhammad Zahid (P. W. 8). Rehman Shah (P'W. 6) is the real brother of Mst. Jumiasha. He had joined the investigation and had gone with the Police to Mansehra. He has deposed that while their Zuzuki reached village Besham at Khuftanwella, they saw 2 persons on the road side waiting for the Suzuki. He identified them as his sister Mst. Jumiashab and co-accused Umer Farin. They stopped the Suzuki on his pointation.. The Police arrested by the accused persons. He had also attested the recovery memo (Ex. P. W. 6/1) regarding possession of taperecorder (P. 2), two bangles (P. 3) and one necklace (P. 4) from the posses­ sion of his sister Mst. Jumiashah. Mst. Bibi Hanifa aged about 10/11 years appeared as P.W. 7. She is the real daughter of Mst. Jamiasbah appellant. She has narrated how on the night of occurrence, her mother Mst. Jumiasbah eloped with co-accused Umer Farin, She was subjected to lengthy cross, examination but the defence could not shake her credibi­ lity. Muhammad Zahid, complainant appeared as P. W. 8. According to him at the relevant time he was in Saudi Arabia but on receiving informa­ tion, he returned to his village and after collecting information from bis daughter Mst. Bibi Hanifa, he lodged the First Information Report on 7-2-1981. Maulvi Jami, A.S.I. (P. W. 9) is the Investigating Officer in this case. 3. Ms>l. Jumiasbab appellant in her statement recorded under section 342 Cr. P C. denied the prosecution allegations. When asked whether she absconded after the occurrence till she was arrested along with co-accused Umer Farin on 11-2-1981, on the identification of her brother Rehman Shah (P. W.), she replied in the negative. When asked whether she made a confessional statement (Ex. P.W. J/4) on 12-2-1981 before a Magistrate, she stated as under :— "No, The confessional statement was extracted from me through third degree methods used by the Police."When asked why the P. Ws. her husband Muhammad Zahid, her daughter Mst. Bibi Hanifa. her brother Rehman Shah and her father Liaqat Shah had deposed against her, she stated as under •— "They have falsely deposed against ,me. My daughter, brother and father have deposed against me at the instance of my husband". When asked what was her statement and why she was charged, she stated as under :— "I am innocent and falsely charged. The fact is that on the night of occurrence one SherinBashar-Kjf our village had come to my house at night time and had tried to assault me. In self defence I stabbed him and thereafter due to fear I ran to the house of my maternal uncle situated in village Belanai. On retutn to my village when 1 was wailing for the Bus at the Stop I was alone arrested by the Police. Umar Farm accused was not with me at that time." Umar Farin, appellant in his sta.cmi.ni al\o denied the prosecution allega­tions. When asked wheJher he absconded after the occurrence till he was arrested a'ongwith Mst. Jumiashah on 11-2-1981 by the local Police.be stated as under :— "I never absconded. In fact 1 was working as labourer in Mansehra. I was not arrested in the company of Mst. Jumiashah," When asked whether he made a confessional statement Ex. P.W.I/I on 12-2-1981 before a Magistrate, he stated as under :— "No. The confessional statement was extracted from me through third degree methods used by the police." When asked why the P. Ws. had deposed against him. he stated that they had charged him on suspicion. He claimed to be innocent and falsely charged in the case. The accused persons did not produce any evidence in defence. The trial Court vide impugned judgment dated 31-10-1981 convic­ ted both Umer Farin and Mst. Jumiashab under section 16 read with section 19 (2) of the Ordinance and sentenced each of them to under­ go R. I. for 5 years with 20 stripes. Against his conviction and sentences Umer Farin, appellant, filed Jail Criminal Appeal No. 159/1 of 1981. Mst, Jumiashah challenged her conviction and sentences a separate Criminal Appeal No. 33/1/82. Muhammad Zahid, complainant, has also filed Cri-ninal Appeal nj 2S/P of 1981 against the convicts praying that sentence under section 16 of the Ordinance be enhanced and the accused be also convicted and sentenced under section 10 of the Ordinance. This appeal was admitted for regular hearing and notice was issued to the con­ vict-vufe an Order dated 23-12-1981. 4. Since all the three appeals arises out of the same impugned judg­ ment and relate to the same occurrence they shall be deposed of by this judgment 5. We have heard at length ihe counsel for the parties and have also perused the entire material available on ibe record. 6. It is vehemently contended by the learned defence counsel that after finding that it was a case of elopement and not of abduction, the learned Session Judge was not legally justified to convict Ume ,r Farin and Mst. Jumiashah under section 16 of the Ordinance. He has cited several authorities in support of his argument If Mst. Jumiashah. appellant had herself gone out of her house than it could not be said that Umer Farin, appellant bad taken or enticed her away with intent that she may have illicit inter-course with him. Similarly this Court has already held in several cases that a famale cannot abet her own adduction, enticement or concealment. In other words a female cannot be a victim and an offender at one and the the same time. (i) Criminal Appeal No. 140/ I of!981 ; (ii) Criminal Appeal No. I 39/ 1 of 1981 ; (Hi) Criminal Appeal No. 144/ 1 of 1981 ; (/v) riminal Appeal No. 4/P of 1985 ; and (v) Criminal Appeal No. 8/P of 1981. In view of these decisions the convictions of Umer Farin and Mst. lumiashab, convicts under section 16 of the Ordinance are liable to be set aside. 7. According to the learned counsel for the State the learned Sessions Judge baa erroneously not relied upon the confessions of the appellants recorded by Mr. Naeemul Hadi Khan, A.C/S. D. M Alpuri (P.W.I). The learned Sessions Judge has observed that these confessional statements of the appellants were not voluntary and true as the accused in their statement! recorded under section 342 Cr. P. C. have stated that the confessional statemnts were, extracted from them through third degree methods by the police. It is further observed by the trial Court that the Magistrate who reorded the confessional statements had not disclosed his identity to the accused and had not asked them as to for how many days they remained in police custody. They were also not informed that they would not be sent back to police custody after recording confessions. The learned Sessions Judge has further observed that after recording the confessional statements of the accused in the Court of A. C. Alpuri they were handed •over to A. S. I. Moulvi Jami. For these reasons the learned Sessions Judge ruled out of consideration the confessional statements of the accused persons. Both the accused persons were arrested on 11-2-1981 at Khuftanwela near village Shand of Police Station Besham. Next day I.e. 12-2-1981 both the accused persons were produced in the Court of Mr Naeemul Hadi, S. D. M. Alpuri. This clearly shows that both the accused persons were produced before the Magistrate at the earliest without any delay. No doubt the accused persons in their statements recorded under section 342 Cr. P.C. have stated that their confessional statements were extracted from them through third degree methods used by the police but there is nothing on the record to substantiate this allegation. Even the Investigating Officer (A. S. I.) Miiolvi Jam was not put any such suggestion in «ross-examination. The last question put to him was that the confessional statements were recorded on promise., There is no indication regarding the nature of the alleged third degree methods used by the police against the accused persons. Even the nature of promise has not been disclosed by by the defence. If there was any allegation of any third degree method against the police then the proper course for the defence was to put the same to the Investigating Officer or the complainant who was accompanying the raiding party. The confessional statements were recorded on 12-2-1981 while the statements of the accused under section 342 Cr. P. C. were recorded on 12-9-1981. There is nothing on the record to show that after their confessional statements the accused-persons made any allegation or complaint to the proper authorities regarding third degree methods used by the police or otherwise alleging that their confessional statements were not voluntary and true but were obtained through coerction, threats or promise etc It was only at the end of the trial that this allegation of third degree method has been leveled against the police, otherwise there is nothing on the record to support such allegation. The conduct of the accused persons also goes against them in this behalf. Their mere allegation in their state­ ments under section 342 Cr. P. C. is not saffic'ent to discard their confes sional statements unless such allegation is supported by other evidence—circumstanctial or documentary. We have minutely scrutinised the confessional statements of Umer Farin (Ex. P. W. 1./2) and of Mst. Jumiashab P. W. 1/5) and find that the learned Magistrate put the following questions to them before recording their confessional statements :— A perusal of the above shows that the learned Magistrate had complied with necessary legal formalities before recording the confessional statements of the accused persons. The mere fact that it is not clear that the Magis­ trate had disclosed his identity to the accused would not make their con­fessional statements involuntary. In cross-examination Mr. Naeemul Hadi Khan, Alpuri (P, W. I) had clearly stated that he had disclosed his identity to the accused Umer Farin and Afst. Jumiashah. There is no allegation that triis vfjgistrate or the lriv;>tigating Officer was inimical towards the accused or otherwise was interested in getting confessional statements from the accused persons in an illegal manner. Both these Officers were subjected to cross-examination by the defence but no such suggestion was made to them. Regarding the fact that the Magistrate had not asked the accused persons as to for how many days they remained in police custody, the same Magistrate in cross-examination has clearly stated that he had also asked the accused as to how many days they remained in police custody, but these facts have not been mentioned by him in writing. In the absence of any allegation against him we have no reasons to disbelieve his state­ ment before the trial Court that he had asked the said questions but he had aot mentioned it writing. This omission has not in any manner prejudiced-the case of the accused because it is an admitted fact that they were arres­ ted late in the evening on 11-2-81 and were produced before the Magistrate next day. Similarly the question that after recording their confessional statements the accused persons were handed over to Maulvi Jami, ASI, it is argued that there was no other agency other than the police for sending the accused persons to the judicial lock-up. There is no allegation that after their confessional statements the accused persons were kept in police custody and were not staright-away sent to the judicial lock-up. From the persual of facts and circumstances of the case we are convinced that the confessional statements of the accused persons were recorded promptly without any delay and the Magistrate had complied with the legal forma­ lities bsfore recording their confessions. A mere omission of certain questions in writing would not be sufficient to vitiate the confessional statements which otherwise have been proved satisfactorily. We therefore are of the view that the learned Sessions Judge was not justified in holding the canfc.sional statements as not voluntarily and true. In fact the accused persons had voluntarily made their confessional statements before Mr. Naeemul Hadi Khan AC/SDM, and the same are true." If they were false the accused persons could easily prove the same. For example both the accused persons have stated in their confessional statements that at that time Afst. Jumiashah was pregnant from Umer Farin, accused. Admit­ tedly her husband Muhammad Zahid had no access to her duringjthis period. If the confessional statements (Ex. P.W./I/l & Ex. P. W. 1/4) were not voluntary and true the fact of Mst. Jumiashah's pregnancy could easily be verified as it was a pure question of fact which the accused could easily disprove, if it was false. 9. If the accused persons had struck to their confessional statements before the trial Court, they could be convicted and sentenced under section 5 of the Ordinance, However, since before the trial court the accused persons have reiracted from their earlier confessional statements, we have to judge the value of their retracted confessions. It is argued by the learned Defence Counsel that retracted confession should be ignored ompletely and the appellants should be acquitted. On the other hand the learned counsel for the State argues that retraction should only save the accused from the penalty of hadd provided under section 5 but they can be convicted for taazir. We are inclined to agree with the latter- In fact this is what the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 clearly provides. It is provided by section 9 of the Ordinance that in a case in which the offence of zlna or zina-bil-jabr is proved only l>y the confession of the convict, hadd or such part of it as is yet to be enforced, shall not be enforced if the convict retracts bis confession before the hadd or such part is enforced. Similarly in a case in which the oflFence of Zina or Zina-bil-Jabr is proved only by testimony, hadd or such part of it as is yet to be enforced, shall not be enforced, if any witness resiles from his testimony before hadd or such part is enforced, so as to reduce the number of eye witnesses to lees than four. In such a case the Court may award taazir on the basis of the evidence on record. Further section 10 of the Ordinance says that whoever commits zlna or zina-bfl Jabr which is not liable to hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of qazf liable to hadd has not been awarded to the complainant, or for which hadd may not be enforced under this Ordinance, shall be liable to taazir. We are of the view that this case is clearly covered by taazir. It is otherwise well-settled now that an accused lean be convicted on retracted confession provided it is voluntary and Zatrue. In the instant case even independent corroboration is available on 'the record. 10. Mst. Jumiashah, appellant was married to complainant Muhammad Zahid about 15 years prior to the occurrence and she gave birth to 4 children. All the four children were minors at the time of occurrence. It is also admitted fact that at the relevant time the father of the children namely Muhammad Zahid, complainant was away from the house and Mst. Jumiashah alone was looking after her children. Hence leaving the children all alone and remaining absent from them and from her house for a considerable period supports the prosecution version. As a mother of 4 minor children she could not leave them all alone in this manner. Her conduct and absence from her house therefore goes against her. It is established on the record that both the appellants Mst. Jumiashah and Umer Farm were arrested together by the Police on 11-2-1981. The recovery memo of the articles recovered from Mst. Jumiashah, appellant also suppo ts their arrest at the relevant time. Another circumstance which goes against Jumiashah, convict is that her own daughter Mst. Hanifa [P. W. 7), her father Liaqat Shah (P. W. 5) her real brother Rehman Shah (P. W. 6) have deposed against her. The defence has brought nothing on the record even to suggest that these witnesses who are so closely related to her, had any animus or motive to falsely implicate her in this case. 11. We have also considered the plea taken up by Mst. Jumiashah convicf in her statement under section 342 Cr. P.C, and find no substance in it. The defence has placed no material on the record to show that her plea could be possible. If she had stayed in the house of her maternal uncle in village Belanai, she could easily produce her said maternal uncle or some other member of that family to prove this fact. This shows that indirectly she admits her absence from her own house and children. 12. After hearing the counsel for the parties and going through the! entire material available on the record we are convinced that the prosecu-L tion has established the guilt of Umer Farm and Mst. Jumiashah beyond! any doubt. They have been committing offence under section 10(2) of the) Ordinance which also resulted in pregnancy of i/st. Jumiashah. 13. The upshot of the above discussion is that the convictions andj sentences awarded to Mst. Jumiashah and Umer Farin, convicts under sec-JC tion 16 of the Ordinance are set aside and instead they are convicted under! section 10(2) of the Ordinance and each is sentenced to undergo R. I. for 5 years plus whipping numbering 20 stripes and a fine of Rs. 1000 or in default of payment of fine further R. I. for 4 months. The sentence of whipping shall be executed in a public place in accordance with the pro­ visions of the Execution of the Punishment of Whipping Ordinance, 1979. 14. These appeals stand disposed of in the above terms. TQM) Ordr accordingly.

PLJ 1983 FSC 55 PLJ 1983 FSC 55 (Appellate Jurisdiction) Present : aftab hussain, C.J., alj hussain qazilbash A ch. muhammad siddiq, JJ MASOOD AHMAD—Appellant versus THE STATE—Respondent Cr. App. No. 63/1 of 1982. decided on 10-10-1982. <l) Prohibition (Enforcement of Hudood).Order (P.O. 4 of 1979)—

Art. 11—Drinking liable to taaztr —Offence of—Appellant found in state of intoxication and taken to hospital for medical examination—Doctor finding him smelling of liquor while Chemical Examiner detecting alcohal in his urine and blood— Held : fn view of admission of appellant regard­ ing his having been taken by two police constables to hospital and evidence of Doctor supported by report of Chemical Examiner, certain discrepancies in statements of witnesses to be of no avail—Offence of drinking, he'd further, proved beyond any shadow of doubt. [P. 58] A <ii) Prohibition (Enforcement of Hudood) Order (P.O. 4 of 1979)—

Arts. 12&11 —Taking of intoxicant—Offence of—Arrest on suspicion —Prohibition of—Held : Detention or arrest of person suspected of having taken intoxcant having been prohibited. Police Officer to be com­ petent to arrest accused after collecting evidence of authorised Medical Officer in form of certificate issued by him regarding accused having taken intoxicant—Held further : In case of refusal 10 accompancy Police Officer to authorised Medical Officer, accused to be arrested to be taken by force to Medical Officer to collect evidence against him. [P. 60] B (iii) Prohibition (Enforcement of Hudood) Order (P.O. 4 of 1979)—

Arts. 16 <fc 12—Cognizable offence—Arrest on suspicion—Investigation —Permission by Magistrate—Necessity of— Held : Police Officer on suspicion of commission of offences under Arts. 8 & 11 to act according to provisions of Art. 12 while in other cases such officer not to proceed on his own suspision but on specific complaint before him and unless offence inter alia under Arts. 8 & 11 be committed at public place, Police Officer to secure warrant of arrest from Magistrate and to seek his permis­ sion for investigation. [P. 61] C 1968 P. Cr. L. J. 97 ; AIR 1932 Bom. 610 ; 13 Rang. 130 ; 142 km. 94 ; P L D 1964 Kar. 381 ; 27 Cal. 144 ; 31 Bom. 438 ; 50 Bom. 344 & 1930 Bom. 49 distinguished. (it) Prohibition (Eaforceneit of Hadood) Order (P.O. 4 of 1979)—

Arts. 12 & 10—Offence—Non-cognizability of—Arrest and investiga­ tion—Restriction on— Held : Non-cognizabiiity to (ordinarily) effect and restrict power of arrest and investigation but Art. 12 having permitted both, case falling under such Article not to be said to be non-cognizable and collection of medical evidence in case to amount to collection of evidence conclusively proving charge of drinking. [P. 61] D (t) Prohibition (Enforcement of Hodood) Order (P O. 4 of 1979)—

Art. II—Taking of intoxicant—Offence of—Conviction—Conclusive evidence of Doctor and report of Chemical Fxaminer—Evidentiary value of— Held: Trial based on conclusive evidence of Doctor and report of Chemical Examiner to be much stronger than case based only on tes­ timony of eyewitnesses which may or may not be believed. [P. 67] H (ri) Punjab Prohibition (Enforcement of Hudood) Roles, 1979—

R. 6—Prohibition Officer— Production of person arrested before—Neces­ sity of— Held : R jl-? relating to forwarding of person arrested by any com­ petent officer to Prohibition Officer wish report containing facts relating to arrest not to he applicable in case where such arrest be not result of , search warrant—Held further: Rule even if given extended meaning to include such category of cases, same to be ultra vires of Order (4 of 1979) in view of provisions of Art. 27 applying provisions of Code of Criminal Procedure (V of 1898) mutatis mutandis in respect of cases under Order. [P. 70] J (vii) Criminal Procedure Code (V of 1898)— :

S. 537—Vitiation of proceedings— Pre-trial investigation proceedings- Objection regarding—Effect of— Held: Proceedings of investigation when not properlv conducted and evidence collected in that exercise when unreliable, mauer to be considered at trial as well as on appeal but such defect not affecting trial based upon evidence produced before Court and weight given to it, not necessarily to vitiate proceedings in all cases. [P. 67] G PL J 1981 Cr. C. (Lah.) 184 ; 1969 P. Cr. L J 789 ; 1968 P. Cr.L J 1935 & P L D 1967 Pesh. 191 distiuguished. P L D 1961 Lah 175 ; A I R 1947 P. C. 67 ; P L D 1959 (W. p.) Lab. 715 & 1968 P. Cr L J 263 ref. Procedure Code (V of 1898)— ——S. 191 Transfer on application of accused— Held : No pe r son to be judge in his own cause and no judge to be allowed to act in basis of his pre­ conceived opinion as to guilt of accused person—Held further: Accused to be informed of bis righ; to be iried by another Magistrate if he so liked but non-compliance of such right no: to break any concept of error, omission or irregularity in mode of irial— Obiter dictum. [P. 63] E (ix) Practice & Procedure—

Non-statutory proposition of law—Applicability of in case covered by definite curative provisions of law— Held: Non-statutory proposition of law that "wheie power be given to do certain thing in certain way, same must be done in that way or not at all," not to be applicable to case covered by definite curative provisions of Code of Criminal Procedure (V of 1898) in its Chapter XLV. [P. 65) F PL D 1959 (W.P.) Lah. 851 ; A IR 1928 Lah. 66 ; A J R 1920 Mad. 865 ; P L J 1976 Lah. 254 ; P L D 1958 Dae. 165 ; P L D 1960 Kar. 204, A I R 1955 S C 196 & P L D i 960 S C 265 ref. Mr. Mohammad Zaman Bhattt, Advocate for Appellant. Mr. Mohammad Aslam Uns, Advocate for the State. Dates of hearing : 9/10-10-198 2. judgment Aftab Hnssain, C, J.—By his order dated 13-5-1982 Syed Tasaddaq Hussain Bokhari Magjstrate First Class, Faisalabad convicted the appellant under section II of the Prohibition (Enforcement of Hadood) Order, 1979 and seu'sn::d ! i n :•> .in-'.: yjar,' rigorous imprisonment and ten stripes. 2. Hence this appeal. 3. The prosecution case is that on ihe night between 1 lib and 12 th of February. 1980 when Muhammad Arif, Constable, P.W. 1 and Sikandar Hayat, Constable. P.W. 3 were on duty in Fawara Chowk, Faisalabad , they found the appellant at about 12-00 p.m. or 12-15 p m. in a state of intoxica­ tion. They took him with them in a bid to go to the Police Station. At Satiana Road Gate they met Abdul Rahlm, Head Constable who was later promoted as Assistant Sub Inspector and appeared in the Court as P.W. 5. Abdul Rahim sent the appellant with Muhammad Arif, P. W. 1 and Nawaz Constable to the hospital for his medical examination. The appellant was examined by Dr. Imtiaz Ahmad Gil who found him smelling of Liquor. He observed that his face .vas red and he was taking exessively. He took his urine, blood and stomach wash and sent them to the Chemical Examiner for anaylisis. The Chemical Examiner's report Ex. P. E. is positive to the extent that he detected Alcohal in the urine and blood only. 4. In support of the prosecution case Muhammad Arif, P.W. 1, Walter Masih. ASI. P. W-2, Sikandar Hayat, Constable, P.W. 3, and Dr. Irntiaz Ahmad Gil P. W. 4 were produced. Abdul Rahim ASI appeard as Investigating Officer. The evidence of Walter Masih, P. W. 2 is only formal since he had written the first information report Ex. P.A./l on receipt of the complaint Ex. P.A. at about 1-25 A.M. the same night. 5. Muhammad Arif, P.W. I and Sikandar Hayat, P.W. 3 proved the facts as stated above regarding the presence of the appellant in a state of intoxication at the place where they were on duty. Muhammad Arif further stated thai he took the appellant to the doctor who after his medical examination gave him a sealed envelope and ,iree sealed phials which he pave to Abdul Rahim, P.W. 5 who took (hem in possession, vide Ex. P. 5, on the 12th of February, 1980. He look these articles to rhe office of the Chemical Examiner and handed them there. They were not tempered with for so long as they remained in his possession. In his cross examination he stated that the house of the appellant was at a distance of about ! Kilometer from that place and the appellant had made no effort to escape. He asked for a match box and at that time it was discovered that he had taken liquor. He denied that there was any quarrel between the constable and the appellant. Sikandar Hayat P.W. 3 in his cross examina­ tion stated that the appellant tried to escape on seeing the constables. Imtiaz Ahmad Gil. supported his medical examination report Ex. P.C. Abdul Rahim, P.W. 5 supported the version of Muhammad Arif, P. W. I. He denied that there was any quarrel between the police constables and the appellant. 6. The appellant denied that he was drunk. He admitted that Muhammad Arif and Sikandar Hayat, constables had taken him with them but said that he was not produced before the doctor. He. However admitted that his blood, urine and stomach wash was taken. He explained that there was a quarrel between him and these constables who had involved him in this false case. 7. He produced Padri Samual Shah, Principal, Saint Johns Mission High School , D. W. 1 and Nazir Ahmad an owner of a Printing Press, D.W. 2. Both of them stated that they never heard of any complaint of drinking against the appellant. 8. The leajped counsel for the appellant urged that the evidence of P.W. 1 and 3 wa« discrepant in as far as P.W. 1 stated that the appellant did not try to escape while according to P.W. 3 he did attempt to escape. P.W. I stated that he discovered that the appellant was drunk when the latter asked for a match box. Sikandar Hayat said that Masood Ahmad was making noise in a state of intoxication. Nothing turns upon these discrepancies in view of the admission of the appellant that he was taker with him by these two constables, and the evidence of Or. Imtiaz Gil which is supported by the report of the Chemical Examiner. It is proved beyond any shadow of doubt that the appellant was drunk on the night between 1 1th and 12th of February, 1980. 9. The learned counsel raised certain Technical preliminary objections which according to him vitiated the trial and entitled the appellant to acquittal. He raised the fallowing objections :— (1) Article 16 of the Prohibition Order provides that an offence Inter alter under Article 11 is cognizable only if it is committed at a public place. In the present case there is no evidence that the appellant had taken liquor at a public place. It was therefore, a non cogniz­ able offence and the police had neither the right to arrest the appellant without warrant nor the right to investigate the matter without specific permission from a Magistrate as provided in section 155, Criminal Procedure Code. (2) Rule 6 of the Punjab Rules framed under the Order provides for procedure of taking an accused to the Prohibition Officer who only had the right to submit a report under section 173 Cr.P.C, to nable ibe Magistrate concerned to take cognizance of the case under section 190 of the Code. This procedure was not complied with and in view of the mandatory nature of the rule as held in 1982 NLR (Criminal) 212 the appellant cannot be punished and is therefore, entitled to acquittal. (3) The Head Constable or ihe Constable had no right to arrest the appellant in view of section 12 of theTrohibition Order. 10. The first and third point may be taken together. Clause 1 of Article 16 of the Order provides that the following offences shall be cogni­zable, namely :— an offence punishable under Article 4, Article 8 or Article 11, if committed at a public place. 11. Article 12 is as follows :— (12) Arrest on suspicion of violation of Article 8 or Article 11. —(l)No police officer shall detain or arrest any person on suspicion that he has taken an intoxicant in violation of Article 8 or Article 11 unless he has asked such person to accompany him to an autho­ rized medical officer for examination and such person either refuses to so accompany him or, having been examined by the medical practitioner, is certified by him to have taken an intoxi­ cant. (2) Whoever contravenes the provisions of clause (1) shall be punish­ able with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. 12. It appears clear that an offence under Article 11 shall be cogniz­ able if committed at a public place. The expression 'cognizable offence is not defined in the Order but by virtue of section 22 which applies the provision of Criminal Procedure Code mutatis mutandis to cases under this Order, the definition of that expression in the Code is relevant. The definition is to the effect that a cognizable offence is an offence in which a police officer may in accordance with the second schedule or under any law for the time being in force arrest without warrants. 13. The procedure to be followed on information is provided^in sections 154, 155 and 156 of the Code. Section 154 provides that every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police station, shall be reduced into writing by him or under his direction and be read over to the informant ; and every such information will be given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book by such an officer to be maintained in such form as the Provincial Government may prescribe in this behalf. The form of the first information report Ex. P.A./l is the form of a report under this section. 14. Section 155 provides that on receiving the information in a noncognizable case, the officer incharge of the police station, shall enter in a book to be kept as aforesaid and substance of such information and refer the informant to the Judicial Magistrate. No police officer shall investigate a non-cognizable case without order of a Magistrate of the First or Second Class having power to trysuch case or send the same for trial to the.Court of Session. Any police officer receiving such order may exercise the same powers in respect of the investigation except the power to arrest without warrant as an officer in charge of a police station in a cognizable case. 15. Section 156 authorises the officer in charge of a police station with­ out the order of a Magistrate to investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter-XV relating to the place of inquiry or trial. No proceeding however of a police officer in any such case shall at any stage be caHed in question on the ground that the case was one which such officer was not empowered under this section to investigate. Any Magistrate empowered under section 190 may order such an investigation as above mentioned. How ever, the investigation of a case under section 497 or 49R cannot be mad except upon a complaint made by the husband of the woman, or, by some person who had the care of such women on his behalf at the time when such offence was committed. 16. The sum and substance of these provisions is that in a cognizable case the police officer has the right to arrest and investigaie the case with­ out seeking the speci6c order of a Magistral e or an ordce Irom him in a noncognizable case the police cannot arrest a person without warrant nor can investigate without the order of the Magistrate. The ac: of a police officer who is not an officer described in sections 154 to 156 is however, validated by providing that it shall not be called in question at any stage that the case was one which such officer was Dot empowered under this section to investigate. 17. Article 12 of the Order, however, provides for a different proce­ dure in a case Inter alia under section 11 where a person is guilty of drinking which is not liable to Hadd or for which proof in either of the form men­ tioned in Article 9 is not available. It provides for collectiori of the medical evidence by a police officer and for arrest of the accused by him without making any reference to ibe Magistrate or seeking bis permission. Investigation under ihe Code of Criminal Procedure (Section 2 (1)) includes all proceedings for collection of evidence conducted by a police officer Article 12 therefore, authorities a police officer to collect at least specified evidence. 18. Article 12 of the Order, no doubt, prohibits a police officer from detaining or arresting any person on a mere suspicion of his having taken intoxicant which power he can exercise under section 54, Code of Criminal Procedure. But it allows him to arrest the accused after collecting evidence of an iotborised medical officer in the form of a certificate issued by him that he accused bad taken intoxicant. This is a case of arrest after investigation. It also allows him to arrest the accused in case of his refusal o accompany him to an authorised medical officer which is clearly a case of arrest prior to investigation since the intention appears 10 be that in case of refusal the accused would be first arrested and then taken by force to the authorised medical officer for examination to enable him to collect evidence against the accused. 19. The duty of the Court is to attempt to reconcile such self-contra­ dictory provision as of Articles 12 and 16. This reconciliation is possible by holding that where a police officer suspects the commission of offences under Articles or 11, he shall have to act according to the provisions of Article 12. In other cases where he has to proceed not on his own suspicion but on a specific complaint before him as contemplated by section 155 Cr. P.O.. unless inter alia the offence under Article 8 or Article 11 is com­ mitted at a public place, he shall secure a warrant of arrest from the Magistrate and seek his permission for investigation. In order to protect persons from illegal detention and undue harassment, it is provided in clause 2 of Article 12 that a person contravening the provision of clause 1 shall be punishable with imprisonment which may extend to six months, five hundred rupees as fine or with both. 20. In the com of Mst. Mwntssz Begum (196S P. Cr. LJ. 97) it was held that notwithstanding the qualified power given to certain police officer in the West Pakistan Suppression of Prostitution Ordinance, II of 1961, the offences under the Ordinance could not be treated to be cognizable. Reliance was placed for this proposition on Ragtnmath v. Emperor (AIR 1932 Bom. 610). Hiwen Httn v. King Emperor (ILR 13 Rang. 130), Bhairo Murad Jagtrani v. Crown. Hafl Mahmood Khan v. Crown (ILR 142 Kar. 94). This view was repeated by the Karachi Bench of the High Court of West Pakistan in Mohammad Rashld v. State (PLD 1964 Kar. 381). A different view was taken in Queen Empress v. Deodhar Singh and anothdt- (ILR 27 Cal. 144, Emperor v. Fernard (ILR 31 Bom. 338.) Emperor v. MNias Bhat. (ILR 50 Bom. 344) and Emperor v. /small (MR 1930 Bom. 49) 21. All the cases whether Pro or Con are distinguishable. Non cognizabiiity affects or to be more precise restricts the power of arrest and •investigation. But section 12 permits both. The collection of medical evidence amounts to collection of evidence which conclusively proves the •charge of drinking n section 11 of the Order. \ case falling under section J2 cannot be said to be uon-cognizabie. 22. The Hcid Constable who was a police officer, therefore, acted in 'due-discharge of his duties by sending t.he appellant to the medical officer, obtaining his certificate as proof of drinking and then- arresting the appellant. 23. In support of the proposition that if the police officer investigated ^without permission of the Magistrate his report under section 173 Cr. P.C. would not authorise the Magistrate to take cognizance of the matter under section 19Q of the Code, the learned counsel relied upon the case of Mst. Mumtai Begum v. The State n9b& Pakistan Criminal Law Journal. 97). Haider v. The State (1969 kistan Criminal Law Journal 598) and Mohammad Rasheedv. The State iPLD 1964 (W P.) Kar. 381). 24. In all the three cases it was held that the Magistrate cannot take cognizance under section 190 Cr. PC. on a report under section 173 Cr. P.C. made in a non-cognizable_case in which the investigation is carried out by a police officer without seeking the permission of the Magisttate. Some case Saw is discussed in the case of Mst. Mumtaz Begum v. The State. It is, however, important to note that all these cases were decided before the amendment of section 537 by Ordinance X!I of 1972. Previous to that •section 537 was as follows :— "537. Subject to the provisions hereinbefore contained, no finding. sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVH or on appeal or revision on account — (0) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceed­ ings before or during trial or in any inquiry or—other proceedings under this Code, or (2) ... ............... - (c) of the omission to revise any list of jurors or assessors in accordance with section 324, or (</) of any misdirection in any charge to a jury unless such error, omis­ sion, irregularity, or misdirection has in fact occasioned a failure of justice. Explanation —In determining whether any error, omission or irregular­ ity in any proceeding under this Code has occasioned a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceed­ ings. 25. The amended section is now as follows: "Finding or sentence when reversible by reason or error or omission In charge or other proceedings. —Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of com­ petent jurisdicrion shall be reversad or altered under Chapter XXVII or on appeal or revision on account— (a) of any error, omission or irreguiariiy in the complaint, report by police officer under section 173, summons, warrant, charge, procla­ mation, order, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code, or (A) of any error, omission or irregularity in the mode of trial including ^any roisjoinder of charges, unless, such error, omission or irregularity 'has in fact occasioned a failure of justice. Explanation.—In determining whether any error, omission or irregular­ ity in aay proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in proceedings." 26. The main distinction relevant for our purpose is that originally any error, omission or irregularity in the report of a police officer under section 173 was not curable but now like the case of error, omission er irregularity in a complaint any error, omission or irregularity in the report of a police officer under section 173 is also made curable and does not allow the finding sentence or order of a competent Court to be reversed or altered. 27. The learned counsel however relied on Nurman Shah v. The Sta (PLD, 1967 Peshawar. 191). Rehrnat v. The State. (1968 P. Cr. L.J. 1935) and Zabtiey Khan v. The State (1969 P. Cr. L.J. 789) We checked anothe T case Noor Mohammad . The State [PLJ 1981 Cr. C. (LahoYe) 184]. These cases are however, distinguishable. In the Peshawar case as well as in Noor Mohammad . TheStateMie evidence of one care was copied in another which was a serious breach of the mandatory provisions of Law as well as principle that each case should be decided on its own evidence. Such cases are therefore, cases in which the procedure adopted by the Court should have been held aiu that an omis­ sion has occurred because if discretion has been given to a Court to follow a certain procedure or not with regard to a matter, its omission to follow that procedure cannot amount to an omission of which the law will take notice. All omissions by Courts, however, cannot be considered to be illegalities vitiating all that followed them in the proceedings. For instance, if a Magistrate were to only initial a document which the law requires him to sign, it will be difficult to bold that the omission was one which is not curable under section 537 of the Code of Criminal Procedure, and many examples of ihis type could be cited." 34. In a case of Dacca, Abdul Subhan and others v. The State (1968 Pakistan Criminal Law Journal 263)it was held thai almoot all tb provisions are of mandatory nature and the real test was whether 'he error ^oes to the root of the trial, for example where the Court assumes jurisdictiftfl which it does not possess or where it has broken the vital rule of procedure. The following quotation is important in this respect :— "The test that may be applied in considering whether a particular in­ fringement of the provisions of the Code of Criminal Procedure does no: fall within the purview of section 537 appears to be whether the error goes to the whole root of the trial, whether it vj(fates the proce­ edings, wnether the Court assumed jurisdiction which it does not possess, and whether it has broken the vital rules of procedure. In this connection a distinction should be made between a positive enact­ ment by the Code that a certain trial shall not take place and a positive enactment that in the course of such a trial certain detailed procedure should be followed. Both are imperative provisions. But still the one is a different thing from the other. In the former case an infringement of ihe enactment amounts to an assumption of jurisdiciion and vitiates the trial from the very beginning, In the fatter case, an infringement merely amounts to an error^oojission or irregularity in the procedure adopted in the course of the trial, and this is curable under section 537, Cr. P.C. The crucial test to be applied is whether the accused had a fair trial in spite of the transgression of the presc­ ribed rule of procedure. Even if there is an illegality the High Court will not interfere except in case of failure of justice." 35. Section 200 of the Criminal Procedure Code provides that a Magistrate taking cognizance on an offence on complaint shall at once examine the complainant upon oath. In Shamtm v. The State etc. (PLD 1966 S.C. 178) the complainant was not examined and without complying wiih the above provision of section 200 the process was issued to the accused person. It was held to be a curable irregularity though the language of the section is mandatory. 36. The Supreme Court endorsed the observations made in Hasham Haji Sharif v. Mir Khan Jan (PLD 1950 ^Baluchistan 7) that one of the main objects of section 200 Cr. P.G. was to protect the public against, fahe frivolous or vexatious complaints filed against them in criminal Courts and that Magistrates must not lightly accept written complaints and proceed to issue processes until they had thoroughly sifted the allegations made against the accused and were satisfied that a prima facie case had been made out against those who were accused of criminal offences. 37. In Zulfiqar All Bhutto v. The State (PLD 1979 S C. 741) a distinc­ tion was made between substance and technicalities as will be clear from the following portion in the High Court Judgment (which was appealed against in the Supreme Court) and which was cited by the Supreme Court with approval : "It will thus be seen that in determining whether an omission, error or « irregularity in the conduct of the trial, using the phrase so as to embrace all aspects thereof, has vitiated the trial in any manner, the Court must look to the substance and not to technicalities ; and if the accused has had a fair trial, and has not been prejudiced in his defence, then the error, omission or irregularity would sia,nd cured under the provi­ sions of section 537 of the Code. And as the distinction between an illegality and an irregularity is, to borrow the words of Sir John Beau­ mont of the Privy. Council (in AIR 1947 PC 67). only one of degree rather than of kind, nothing turns-on this distinction, for the purposes of the application of this curative section." 38. Coming to the question whether a violation of section J55 Cr. P.C. invalidates the report under section 173 submitted by hirn to the Magistrate under Clause (a) of section 190 and would affect the jurisdiction of the Magistra'e, reference may be made first to two oiher sections of the Criminal Procedure Code namely sections 529 and 530 which will be helpful in understanding the scope of the words added by Ordinance XII of 1972 lo section 537 making any irregularity, omission or error curable inter alia in a report by police officer under sec'.ion 137. 39. Section 529 deals with irregularities which do not vitiate the proceedings and provides in its clause (e) that if any Magistrate not empo­ wered to take cognizance of an offence under section 190, subsection (I), ciause (a) or clause (b) -erroneously in good faith takes cognizance of it, his proceeding? shall not be set aside merely on the ground of his not being so empowered. Section 530 enumerates irregularities which vniate proceedings and one of such irregularities is taking copnzanfe under section 190, subsectio.n (I) clause (c) at'arv$ffc;nce. li. would th-srefore,. folio. jbat where a Magistrate is held not to be.empowered by Law to taker cognizance of an offence under section 190 subsection (I) clause (a) but he takes cognizance of ii erroneously in good faith, his proceedings shall not be set aside merely on the grojnd-of his not being so empowered. 40. Unfortunately in the case cited by the-learned counsel (Af'st. Mumtaz B?gumv. The State, (1968 P. Cr. L.J., 97) even this section which appears to be a complete answer to the finding in thai case has no been taken into consideration and the judgment is based on a nontatutory proposition of law that where a power is .given to do a ce tain thing in a certain way it must be done in that way or not at all, which obviously is not applicable to a case which is covered by definite curative provisions of the Code of Criminal Procedure in its Chapter XLV. It was 'for this reason that in Shafiq Ahmad v. The Slate (PLD 1959 (W.P.) Lah. 851) it was held that if any Magistrate not empowered by law to take cognizarrce of an offence under section 190, subsection (1) clause (a) or (b) does so erroneously but in good faith his proceedings are not to be set aside merely on the ground of his not being so empowered. The proceed' •ings did not, therefore, become invalid on the mere ground that the Magistrate took cognizance of the case under section 191 (a) of the Cr. P.C- on receipt of a police report of a non-cognizable offence in which the Magistrate's permission for investigation was not obtained. It was further held that in any case the report could be treated as a complaint under section 191, (b). - 4!. This view is supported by Emperor v. Wait Mohammad (AIR 1928 Lah 66) in which it was held that where a Magistrate takes cognizance under section 190 (1) (a) of a non-cognizable offence without jurisdiction the the proceedings are validated if he acts in good faith. The same view was also taken by a Full Bench of' ihe Madras High Court in Public Prose­cutor v. Katna Wtlu Shetty (AIR 1920 Madras 865). .Unfortunately none of fnese cases were considered by the West Pakistan High Court in the case of Mst. Mumtaz Begum. 42 In Azi: Masih v. The Slate (PLJ 1976 Lahore 254) it was held that the cognizance of a case by a Magistrate in which investigation was con-ducu- :\ by a Sub Inspector of police without obtaining specific order from the Magistrate First Cl.ass doe-> not vitiate the trial since the irregularity is curable under section 537 Cr. P-.C. In support of this proposition a ref-n-pce was made to Abdul Near v. The Stale (PLD 1958 Dacca !65), Walizer v. The Stale (PLD 1960 Karachi 204) and Rlshpudv. The State of Delhi (\R 1955 S.C. 196) in which the same view had been taken. It may bes a ed ihut this question was raised in State v. Mohammad Hussuin (PLD 1960 S.C. 265) but the Supreme Court left the matter open because the appeal before it was dismissed as incompetent. However a reference to the other three cases was made in that judgment. 43. Sections 529 and 530 are not exhaustive in relation to irregulari­ ties which vitiate or do not vitiate the trial in view of other sections Jik e sections 531, 535 and 537 in the Code of Criminal Procedure. The words error, omission or irregularity in a police officer's report under section 173 are wide enough to cover cases in which the report under section 173 is bad on account of the violation of the provision of'section 155. It is clear that this amendment was necessitated because of the extremely technical view taken by some Courts about the invalidity of a report under section l?i submitted in a non-cognizable case by a police officer who investigated without permission pf a competent Magistrate. Section 529 is one of the sections which validates in its clause (e) cognizance of such a case taken by a Magistrate erroneously in good faith which means that the cognizance of such a case is based on error. There is no reason why the word error or irregularity in section 537 should be interpreted in a narrow sense The only distinction between the two sections is that while section 529 is limited to cases of cognizance by an incompetent Magistrate in good faith, section 537 is much wider in impact and protects all trials based inter alia on such a defective report by a Magistrate having jurisdiction to try the offence. 44. This can be further substantiated by reference to cases of error, omission or irregularity in the complaint in which pretrial proceedings even though defective and not in accordance with the provisions of Chapter XVI were held to be curable. Notice has already been taken of Shamim v. The State etc- (PLD 1966 S.C. 178) in which notwithstanding the mandatory provisions of section 200 about examination of the complaint, the Supreme Court held the defec'of non-examination to be curable. Similarly it was held in PLD 1949 Baluchistan 16 that a. complaint by a police officer instead of by an Executive Officer as required by section 154 of the Quetta Municipality Act was protected by section 537 Cr. P.C. li was no doubt a case of confession but if the complaint did not confer any jurisdiction upon the Magistrate, the jurisdictiort could not be conferred by a confession or agreement of the parties before the Court. 45. Another case is the case of Anwar Mahmood and others v. Rashlduz-Zaman (PLD 1959 Lah. 186) in which it was held that : "Ordinarily the Magistrate has to accept the statement of the com­plainant made on oath, but if he disbelieve the statement of the complainant altogether or comes to the conclusion that no offence is made out, tt is his duty to dismiss the complaint under section 203 of the Code. But if, on the-other hand, he has got some doubt about the truth of the accusation made by the complainant it is open to him to postpone the issue of process pending further inquiry as contempla­ ted by section 202, and in such an eventuality he has got to record his reasons for postponing the issue of process. The provision for record­ ing reasons is for the benefit of the complaint ; the accused has nothing to do with it. The omission to record such reasons, however, is a curable irregularity." 46. it was also held in the case of Mst. Murntaz Begum ihat the report of the police officer in a non-cognizable case could not be held to be a complaint. I entertain the highest respect for the learned Judge who decided that case but f have not been able to appreciate the logic behind this finding. -It has already been noticed in the case of Shafiq Ahmad v. The State (PLD 1959 (W.P.) Lahore 851), a case on all fours on facts with the case of Mst. Mumtaz Begum that it was held that the report of the police officer could be treated to be a complaint. There are two other ca^es. One is Mohammad Nawaz Khan & Noor Muhammad and others.. (PLD 1967 Lah. 176). and the other is Falak Sher <ft another v The State (PLD 1967 S.C. 425). Both are cases of identical nature. In both cases the police in the report under section 173 submitted that no case was made out against •the accused. !t was held by the High Court as well as the Supreme Court that the report was not binding on the Magistrate and since he was hot act under section -190 Cr. P. C. he could treat the report as a complaint under section 190 (1) clause (b). The Magistrate's cognizance of the case was riot held to be without jurisdiction. This principle can be applied to the present case too. 47. The objection is really only a technical one which does not affect the trial which is based upon the evidence produced before the Court a nd 4t the weight given to it. It does not affect the merits of the case. It i» an objection relating to something in the pre trial investigation proceedings. [f the proceedings or investigation are not properly conducted and the evidence collected in that exercise is unreliable, on that account for same reason, the matter can be considered at the trial as well as on the appeal by weighing the evidence but it is really incomprehensible how this deject would vitiate the proceedings in all cases. It is obviously for this reason that section 529 provided against the vitiation of the proceeding before a Magistrate 'Started on such an invalid report under section 537. » There is no reason why for the purpose of section 537 the defect shoul be treated as absolutely incurable and vitiating the trial, •I 48. In the present case however the trial is based really on the coujciusive evidence of the doctor and the report of the Chemical Examiner. Slit is a much stronger case than a case which is based only on the testimony |of eye witnesses who may or may not be believed. 49. These arguments are sufficient answer to the second point of the learned counsel also in which objection is taken regarding the role which ought to have been played by the Prohibition Officer. It may be stated that according to Article 23 of the Prohibition Order the position of the Prohibition Officer is that of an Incharge of Police Station who can file a report under section 537. All other matt-rs described in Rule 6 also pertain to pre-trial investigation proceedings. Even if further investiga­ tion is assumed to be illegally held and the report under section 173 Cr. P. C. to be illegally submitted by a Polite Officer rather than the Prohibition Officer, the defect is curable under section 529 or 537. In any case the Magistrate uould treat .he report as a complaint. 50. Rule 6 however, has been omitted by Notification No. S. O. Excise VI-2/79 (P) dated 1-1 1-1981. The learned counsel argued that this omission would not be effective against the.trial and about the investiga ­tion made when the rule was enforced. This objection ignores that this • omission was of a procedural rule. Such a question arose in a case before i the Supreme Court of Pakistan in which Act XV1IF of 1964, a procedural law, came into force during the pendency of appeal. It was held after discussing the law "of re<l"6spedtivify of procedural statutes that the High Court should have given' affect to it and applied section 537 to the case. Mohammad Abdullah v. Imdad Alt (1972 SCMR 173). The factum of omis­ sion of the Rule and its effect on pending proceedings was taken note of by the Peshawar High Court in Mohammad Nawaz Khan v. The State (1982 P. Cr. L J. 131). 51. There are two single bench authorities of the Lahore High Court on the effect of Rule 6 of the Punjab Prohibition (Enforcement of Hadd) Rules 1979. Before dealing with these authorities it may be worthwhile to give a resume of some of the relevant rules. Rule 3 (3) provides that the Excise & Taxation Officer shal! exercise within the district of his posting the power of Prohibition Officer under the Order. By virtue of Rule 4 (4) he is giv;n the power of a Pplice Officer under Chapter XIV of the Cr. P, C. while canduciing investigation in a counizable offence under the Order. Then rule 6 is as follows : — "Rule 6. —When any person is arrested by any competent officer, if he is not a Prohibition Officer, he shall forward him to the Prohibition Officer of the area with a report containing the facts relating to his arrest and if the Prohibition Officer is satisfied on the basis of the material and facts placed before him that a prima facie case i$ made out against the accused and the accused is not released on bail he may be,sent to the Police Station of the area where the offence has been committed for custody and formal registration of the case." 52. Thereafter Rule 8 provides that the Officer Incharge of a Police Station shall take charge of and keeo him in safe custody, pending the orders of a Magistrate or a Prohibition Officer, and all articles seized under the Order which may be delivered to him and shall alldrw the Prohibition Officer to affix his seal to such articles and to take sample therefrom. 53. In Asghar All v. The Stete (PLD 1981 Lahore 441) a petition under section 561 (A) of the Code of Criminal Procedure was made for quashment of proceedings of a trial under Article .4 of the Ptpbibition Order of 1979 inter alia on the ground of violation of Rule 6. The learned single Judge after dealing wiih Articles 16. 21 and 27 of the Order held that since an offence envisaged by Article 3(1) and Article 4 by section 16 to be cognizable offences and Article 27 kepi the power of the Police Officer to register and investigate cases and to take properly into possession and to submit challan in the Court intact, the above rule could no be allowed to override the parent legislation and could not be interpreted so as to deprive the police officers of the powers which the Order specifically provides for them. ' ' . . • . 54. The question again cropped up in State v. Abdul Majeed (NLR 1982 Cr. C. 212) and a number of similar other cppeals against acquittal. In all those cases the accused had been acquitted for reason of non-compliance with the provision of Rule 6. The appeals were dismissed on the ground that "violation of either Article 11 of the Order or for that matter of even Rule 6 cannot be taken to be a mere irregularity". The point of the irregularity being curable was also taken before the High Court but the Court did not agree with U; I have already dealt with this question that this is at mcst a curable irregularly and no more need be said about it. But the other question wheiher Rule itself was justified by the Order or applied to the present case remains to be considered since this poini was nrged before us also by the learned oevngel for the appellant pn vhe basis of this last authority. 55. Prohibition Officer as defined in Article 2 (k) means the Collector or any officer appointed or invested with powers under Article 21. 56. Article 21 is reproduced for facility of reference ; 21. "Appointment of Officers.— The Provincial Government may, from time to time, by notification in the official Gazette,— (a) appoint an officer to exercise all<he powers of a Collector under Jhis Order in any area specified in the notification and to have the control of the.administratifln of the provisions of this Order in such area : (b) appoint officers wi4h such designations, powers and duties as the Provincial Government .may think fit to assist the Collector or other Prohibition Officer; and (r) delegate to any Prohibition Officer all or any of its powers under this Order A joint reading of Article 2 clauses (c) &.(k) and Article 21 leads to the conclusion that while the Collector is so exercise powers of the Collector under the Order he may also be a Prohibition Officer or some other person may be invested in the name of Prohibition Officer with powers under Article 21. The Provincial Government has the power to appoint Collector who as stated above is a Prohibition Officer and the power of the Provincial Government may also be delegated to the Prohibition Officer, , 57. The next question is as to wha"t are the powers of a Prohibition Officer under the Order. The first power is that where a person is to bo penally proceeded against for breach of condition of a licence granted to him by the Provincial Government or the Collector under Article 17 the prosecution can be launched under Article 16 (2) (ft) only on a complaint made by or under the authority of a Prohibition Officer. Such a complaint is necessary by this specified authority only in a prosecution under section 20. 58. The next power is that the Prohibition Officer inter alia may issue search warrant on receiving information and after such inquiry as he thinks necessary if he has reasons to believe that any offence under Article 3, Article 4, Article 8 or Article II has been committed. Such warrants shall be for the search of any intoxicant, material, still, utensil, implement or apparatus in respect of which (he alleged offence has been committed. Clause 2 of Article 22 provides for the execution of such warrants by the person entrused with it and also confers upon the latter the power not only to search but also to detain any person or subject to the provision of Clause 1' of Article 12, arresr any person found in the place searched if be has reason to believe such person to be guihy of an offence under either of the above Articles in respect of which the search warrant was issued. Article 23 confers upon the Prohibition Officer the powers conferred on the Officer Incharge of a Police Station while conducting an investigation into a cognisable offence. The reference may now be made to Article 13 which was -mainly- relied upon in the later judgment of the Lahore High Court as well as by.the learned counsel for the appellantbefore us ip.support of the plea that in every 'case in which arrest t . io made under section 12 accused must be produced before the Prohibition, Officer who is the only person entitled to submit a report under section 173 Cr. P, C. after investigation. 59. It is important to note that section 13 which is worded in the following manner : "Punishment for vexatious delay. —Any Officer or person exercising powers under this Order who vaxatiously and unnecessarily delays for­ warding to a Prohibition Officer any person arrested or any article seized under this Order shall be punishable with fine which may extend to one thousand rupees". provides tor punishm«i» of;« person ot Officer ejtercisrng power under thi Order if he vexatiously and unnecessarily delays forwarding to a Prohibition Officer inter alia any person arrested. 60. In ocder to interpret this section it is necessary to find out in the parent legislation any provision regarding ,the circumstances in which any arrested person is to be produced before the Prohibition Officer. The pro­ vision of section 13 otherwise will be extremely ambiguous and even anomalous. 61. ncjw the only provision which allows the Prohibition Officer to take initiative or action is the provision of Article 22 (2) under which person entrusted with the execution of a search warrant issued by a Pro­ hibition Officer is also invested with the powers of arrest subject to the provision of section 12 (1)- It follows without any possibility of doubt that the report of execution of the search warrants as well as the person . so arrested must be produced before the person issuing the warrant whose ' futufe responsibility and future action is guaranteed by the" conferment on him by Article 23 of powers of an Incharge of Police Station regarding investigation of a cognizable offence. Naturally in sacb circumstances the report under section 173 shall be sent by the Prohibition Officer to the com­ petent Magistrate either for trial of the matter himself or, in case of tht jurisdiction of the Sessions Court being exclusive, to transfer the case for trial to that Court. It is in this sense only that the provision of rule 6 could be justified. Even in the absence of that rule tho procedure in a case in which the warrant under section 22 is issued either by a Collector (since he is also a Prohibition Officer) or by the Prohibition Officer, the procedure will to the. same. This is actually the power which is sought to be clarified in the rules to be framed under section 31. 62. In view of what has been stated rule 6, even if in existence, would not have been applicable to the present case in which the arrest was not the result of a search warrant, However, if it is given an extended meaning, to include this category of cases also it would be ultra vtres of the Order in ' view of the provision of Article 27 which applies the provisions of the Code of Criminal Procedure mutatis mutandis in respect of cases under the Order because in such a situation, except in case of ajrrest which is the result of isssue of the search warrants, in all other cnses the powers of the Officer Incharge of a Police Station remain intact to be exercised as contemplated by sections 54, 154 and 155 of Cr. P.O. 63. This disposes of all the objections of the learned counsel for the appellant.. The result is that the conviction is maintained. 64. The learned Magistrate has gjven the maximum sentence of imprisonment i.e. three years. R.I. This appears to be excessive in the circumstances of this case. The appellant shall suffer imprisonment of one yea; R. I. and 30 stripes. As ordered by the learned Magistrate the sensentence of stripes shall be executed at the Iqbal Stadium, FaisaJabad. (TQM) ' Order accordingly

PLJ 1983 FSC 72 PLJ 1983 FSC 72 Present : aftab hussain, C.J'. FALAK SHER—Appellant versus THE STATE—Respondent Cr. App. No. 37-L of 1982, decided on 20-7-1982. (1) Criminal Procedure Code (V of 1898)—

-Ss. 540, 496, 497 & 498—Statement of witness—Recording of at bail stage— Held : Court to be competent to examine witness not only at stage of inquiry or trial but aiso at stage of other proceedings under Code—Held further : Proceedings of trial under Ss. 496, 497 & 498 being undoubtedly proceedings under Code, Court to be competent to record statement of accused at that stage provided same be essential for proper decision of Court. (P. 74 J A & B (fl)Baii—

Grant of—Power of Court to record evidence and to examine police record— Held- Accused in case of non-bailable offence punishable with death or imprisonment for life or 10 years, to be released on bail only on satisfaction of Court regarding there being no reasonable grounds for believing accused having committed offence or applicant being under 16 years of age or sick or infirm—Court in such cases <o act on or evtn record evidence about age or sickness or infirmity and to examine police record also—Held further : Court being competent to act on or record evidence about reasonable grounds for belief or unbelief, accused to be released on bail as of right by Court on its coming to conclusion of there being no reasonable grounds for believing accused having com­ mitted non-bailable offence and there being sufficient grounds for further inquiry—Criminal Procedure Code (V of 1898)—Ss. 497 & 498. [Pp. 74 & 75] C (iii) Bail— — —Recording of evidence—Discretion of Court—Exercise of— Held : Discretion of Court to record evidence at stage of bail though not to be exercised too liberally, not to be denied and to have advantage of exposing to prosecution defects in inquiry to make same discern need for further inquiry and for collection of better evidence—Criminal Procedure Code (V of 1898)—Ss. 496, 497 & 498. [P 75 } D (ir) Administration of Justice—

Unprescribed formalities—Socrifice of justice for— Held: Administra­ tion of justice not to be circumscribed by at least unprescribed formalities nor justice to be sacrificed for them—Held further : Formality or for­ malism being product of common law not to be permitted in Islam at all. [P. 75 ] E fy) Evidence Act (I of 1872)— —S. 114—Performance of judicial and official acts—Presumption regard­ ing—Additional Sessions-Judge acting justly and humanly and in dis­ charge of his'duties in recording statement of only'witness to give relief of interim bail to accused .persons— Held : Presumption pf regular performance of judicial acts to be raised in case. [P. 75 ] F (t!) Criminal Procedure Code (V of 1898)—

S. 540—Witness—Statement by—Recording of-'Held ; Statement though recorded in English explained to witness and admitted correct .by him— Held : Such statement even though not recorded in Court langu­ age not to vitiate or reduce its weight. [P 75 ] G (tH) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10 (3)—Zina—Offence of—Prosecutrix—Statement by—Corroboration—Necessity of—Held : Where prosecutrix be girl of loose character and habitual case of enjoying sexua! intercourse, her story not to be believed without strong corroboraiion—Such corroboration in case being absolutely absent, appellant to be entitled to acquittal. [P 76 ] H Khan Talib Hussain Baloch, Advocate for Appellant. Najamuzzaman, Advocate for the State. Date of hearing : 2-7-1982. judgment The appellant was convicted by the Additional Sessions Judge II, Sahiwal on the 20th of May, 1982 under section 10(3) of the Offence of Eina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to 10 years' R. I. and 30 stripes. 2. Hence this appeal. • 3. The prosecution case is that about 12 days prior to 8th of Sep­ tember 1980 when the First Information Report was given, the appellant and his brother Alam Sher alongwith Mst. Mumtaz Bibi alias Taji visited the house of the complainant and stayed there for a night. On ihe follow­ ing morning they left but returned during the absence of the parents of Mst. Zalcran alias Zalda, the alleged victim of the offence. It may be stated that Mst. Mumtaz Bibi alias Taji is ihe step sister of Mst. Zakran while appellant and his brother are the husband's brc (her of Mst. Muiutaz •Bibi. The prosecution version is that these three persons asked Mst. Zakran to accompany them to Lundianwala in order to attend a marriage •party. She accordingly accompanied them. She was taken to the house of Mumtaz Bibi where the appellant comm tted Zina-bil-Jabr with her for about 10 or 11 days. 4. Mst. Zakrah was recovered by the police on the 10th of September, 1980 from Akhtar Abad. She was medically examined by lady doctor Zubaida K.hanuro the same day. She found that her hymen was torn, and there were old tears. The vagina admitted two fingers easily. She took two vaginal swabs which were sent to the Chemical Examiner. The Chemical Examiner's report which is not exhibited is however negative. The lady doctor did not find any mark of injury on her body and in her opinion Mst. Zakran Was "habitual sexual intercourse." 5. Mst. Zak.ran was also examined by the Radiologist for her age and the X-Riy report. Exh. P. B. was proved by lady doctor Zubaida Klianum. According to this report she was 15 years old. 6. In suppoi t of the prosecution story only two witnesses were pro­ duced namely Bjhawal. P. W. 3, lather of Mst. Zakrar. and Mst. Zakran, P. W. 4. Bdhawal made a statement about rinding Mst. Zakran missing and his statement does not prove anything against the appellant as such. t is for this reason that the learned Additional Sessions Judge who found that it was a case of Ms/. Zakran accompanying the appellant and Msi. Mumtaz e.c. with her free consent, did not consider.it fit to convict the appellant or anyone else on the charge of abduction. 7. The crucial statement, therefore, is that of Mst. Zarkran alias Zakia only. She 'no doubt supported the story of the prosecution but admitted in cross-examination ihat she did appear before Mr Sarfraz Arshad. Additional Sessions Judge, Sahiwal who recorded her statement while disposing of the bail petition of the appellant and his brother Alam Sher. However when the statement D. A. which is a part of the record was put to her she denied i's contents. She further stated that she had put her 'hurab mark on the statement but 'the statement being in the English language its contents -were not read over to her. 8. The said statement is to the following effect : "I was never abducted by Alam Sher and Falak Sher accused. They did not commit illegal intercourse with me. My parents had dropped me in the house of my sister about 1£ months at Renala Khurd." 9. Ft is clear that the statement completely exonerates the appellant of all criminal liability in this matter. 10. The learned trial Judge however refused to rely upon the state­ ment for the reasons firsily that the same was not recorded by Mr. Sarfraz Arshad. according to law since no law allows him to take evidence at the stage of bail and as such it could not be read in evidence unless formally proved on record. Moreover only a certified copy was produced at the trial. 'Secondly ihai ;he statement had been written in the English language and was nor even read over or explained to Mst. Zakran alias Zakia. 11. The same arguments were placed before me by the learned coun- jsel for the State. The learned counsel however conceded that there is no Xjlaw prohibiting the Additional Sessions Judge to record the statement of a (witness at the sta_ge of bail. This concession is correct. g 12. Section 540, Cr. P. C. confers very wide powers in Courts to examine witnesses not only at the stage of inquiry or trial but also at the uage of ' other proceedings under this Code." Proceedings of trial under -ec.ions 496, 497 and 4-)8, Cr. P. C. are unduobiedly proceedings under the CoJe and caa attract the provision of section 540, no doubt, subject to the onditions of exercise of discretion, when the examination of witness is essential for a proper decision of the case. . 13. Section 497, Cr. P. C provides, that a person accused of a nonbai'able offence shall not be released c n bail if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonmet for ten years, provided that inter alia a person under sixteen years of age or any sick or infirm person accused of such an offence may be released on bail. 14. An offence- under section 11 of the Ordinance is punishable with life imprisonment while the maximum senieiice for an offence under sec­ tion 10(3) is 25 years. 15. The Couns of Session could therefore release the appellant on c \bail only if it was satiih";d th.tt there were no reasonable grounds for \believing that he had committed either of the above offences or that he was under 16 years of age or was sick or infirm:. The Court could act on or even record evidence about age or sickness or infirmity. It could also see the police record, on the same analogy. It could as well act on or record evidence about reasonable grounds of belief or unbelief and if it came to the conclusion that there are not reasonable grounds for believing that the accused had committed a non-bailable offence but that there were sufficient grounds for further inquiry, into his guilt it became its duty to release the accused on bail. ' 16. The discretion of the Court to record evidence at such a stage, though not to' be exercised too liberally, cannot be denied. It has at least one additional advantage. It exposes to the prosecution the defects in the inquiry and makes them discern the need for further inquiry and for collection of better evidence which unfortunately was lost sight of in the present case. 17. I regtet to say that the learned Additional Sessions Judge has given more weight to formality than to dictates or requirements of adminis­ tration of justice. Even this assumed formality is not so much based on any law as in lack of precedent that such evidence is not recorded at the bail stage. Formality or formalism in law is the product of com on law and Roman Law and Islam does not at all permit it. The administration of justice cannot be circumscribed by at least unprescribed formalities nor can justice be sacrified' to them. In my view the learned Additional Sessions Judge had done something very just as well as hv»a>ane in recording the statement of the only witness in the present case in order to give relief of interim bail to the accused persons. He was acting in the discharge of his official duty and the presumption under section'! 14 of the Evidence Act applies to the case. . , 18. The finding that only a certified copy was produced at the trial is based on misreading of the record. The original statement is on record. The learned Additional Sessions Judge had recorded the statement of Mxt. Zakran alias Zakia in due discharge of his official duty and the statement being already on the same record could have been read in -evidence parti­ cularly when the deponent had admitted having made 'a statement before the learned Additional Sessions Judge and having put her thumb-impression on the same. 19. The argument that this statement was, not read over to Zakran alias Zakia is also based upon misreading of the record since it is borne out by the statement Evh. D. A. that it was read over to her and was admitted correct (RO&AC). 20. The objection against the statement being recorded in English also lose,s its significance in view of the certificate attached to the statement that it was admitted correct which could not have been the case if the same had not been explained to the deponent. I agree wilh the learned Additionnal Sessions Judge that a statement should have been recorded in the Court language but even if it was not so recorded it did not vitiate or reduce its weight. 21. The statement exonerates the appellant fully and he ought to have been acquitted on this ground. 22. 1he appellant also pleaded alibi and produced Government record in suppjrt of tins plea to pro.veth.it waile the charge is about a place- of Lai jiawila in Fdisalabad D.strict the appellant had been working in Loco Shed at Lahore and had not been present as the place of offence. Accord­ ing to the duty roster he was also present on duty from mind-night to 8-00 a.m. on the 26th, 29th and 28th of August, 1980 and from 4.00 p,m. to 12-Op mid-night on the 27th of August, 1980. The learned Additional Sessions Judge refuted this defence evidence on conjectural grounds that it is'possible that he might have gone from Lahore to Sahiwal after and returned before the duty hours. Firstly he has ignored that the offence of zlna is said to have been committed at Ludianwala, district Faisalabad and not at Sahiwal and secondly this statement of D.W.I finds support not only from '.be statement of Mst. Zakran alias Zakia (Exh. D.A.) but also from the fact that the report of Chemical Examiner was never produced. It should have been presumed that it was negative and was not helpful to the prosecution case. It is on record and is in fact negative. 23. There is another point in this case. It appears that Mst. Zakran s a girl of loose character and was a habitual case of enjoying sexual ntercourse. Her story could not have been believed without strong corro-

oration which is absolutely absent in the present case. The learned trial Court sought this corroboration from the medical evidence which has already been discussed. It does not funish any corroboration. The appelant is entitled to acquittal. 24 I therefore, accept his appeal and set aside the finding and order of the learned Additional Sessions Judge and acquit him. He shall be released forthwith if not required in any other case. (TQM) Appeal accepted.

P L J 1983 FSC 76 P L J 1983 FSC 76 (Original Jurisdiction) Present \ aftab hussain, C.J., ali hussain qazilbash, zahoorul haq, ch. muhammad siddiq & malic ghulam ali, JJ MOHSAN A. REHMAN and Another—Petitioners versus FEDERAL GOVERNMENT & Another—Respondents Shariat Petition No. 1-K of 1981, decided on 28-7-1982. . ti) Constitution of Pakistan , 1973—

Art. 203-D and Land Acquisition Act (I of 1894)—S.4 & Karachi Deve­ lopment Authority Order {P.O. No. 5 of 1957) Ss. 28 & 29—Acquisition of land without consent of owner—Provisions regarding powers of Govern­ ment—Repugnancy to Injunctions of Islam— Held : Government to be competent to acquire lands for public purpose without consent of owners subject to payment of its market value to such owners. [P. 78 ] A P LD 1981 FSC 23 rel. " Alamwal Wa Nazrlat ul Aqdfil fiqh Islaml" by Dr. Muhammad Yousaf Moosa, P. 202 & "Masadir ul Haq fil Fiqhil hlaml" by Dr. Abdul Razzaq Sinhauri —Vol. 11, Pp. 194-195 ref. (ii) Land Acquisition—

Public purpose—Expansion of growing city—Acquisition of land for— Held : Acquisition of land for purpose of expansion of growing city to be for public purpose—Land Acquisition Act (I of 1894)—S. 4 & Karachi Development Authority Order (P.O. 5 of 1957)—Ss. 28 & 29. [P. 79] B (lit) Land Acquisition— —— Public purpose — Setting up of industries — ffe/d': Setting up af indas. "" tries in couniry being obviousFy for public purpose, acquisition of land lor purpose of company to be for public purpose—Land Acquisition Act (I of 1894)—S. 4. [P. 79 ]C (!y) Constitution of Pakistan , 1973— ——Art. 203-D and Land Acquisition Act (I of 1894)—S. 4 & Karachi Development Authority Order (P.O. No. 5 of 1957)—Ss. 28 & 29—Payment of compensation after acquisition of land—Repugnancy to Injunctions of Islam—Petitioners contending payment of compensation in Islam to precede taking over of possession and provisions regarding late payment of cornosnsation to be repugnant to Injunctions of Quran and Sunnah — field : Payment of compensation prior to taking over of possession though in interest of owner but contrary procedure also not 10 be repugnair to Holy Quran and Sunnah as in cases of urgency assessment of compensa­tion not to be possible—Held funher : Expediency and public interest not to be sacrificed to such rule not in nature of Quranic Law. [P. 80 ] D (v) Constitution of Pakistan , 1973—

An. 203-D and Land Acquisition Act (I of 1894)—Ss. 4 to 16, 31 to 37 & 52 to 54 and Karachi Development Authority Order (P.O. No. 5 of 1957) Ss. 28 & 29—Acquisiiion proceedings—Provisions regarding—Repugnancy of—Injunctions of Islam— Held : Acquisiiion of land lor public purpose being permissible in Islam, all provisions advancing interest of owners of lands not to be said to be repugnant to Holy Quran and Sunnah. [P. 80 ] E Nemo for Petitioners. Af. Bllal and Riazul Hasan Gllanl, Advocates for Federal Government. Saeed A. Sheikh. Advocate-General. Sind tor the Government of Sind. Date of hearing : 20-4-1982. judgment Aftab Hussain, C.J.—THe petitioner has challenged by this Shariat Petition provisions of the sections 4-16. 31-37 and 52-54 of the Land Acqui­sition Act, and sections 38-45 of the Karachi Development Authority Order,' 1957 (President's Order No. 5 of 1957). 2. The petitioner's case is that a part of his land in Korangi was first acquired quite sometime ago. Thereafter a notification was issued on llth December, 1964 for the acquisiiion of the rest of the land on which objec­ tions were tiled by him on 2Sih Dc-cember, I9o6 but nothing was heard about their decision. Without following the procedure laid down in the law, the possession of the land wj-. taken by the Karachi Development Authority and upto this time no compensation has been paid. 3. The petitioner was given various opportunities to make out a case and for this purpose the ^matter was fixed at Karachi where a learned Advocate appeared on his behalf and the case was admitted to a regular hearing. It was, however, ordered that the matter shall be heard by the Full Court and for ihis reason it shall be heard at Islamabad . The petitioner applied for hearing the case at Karachi but this application was dismissed as it was already settled during the hearing at Karachi that it will have to be heard at Islamabad . However, with his application he sent supplemen­tary written arguments. 4. Generally the objections of the petitioner on the acquisition of his area are vague and do not attract the Injunctions of the Holy Quran or the Sunnah. The objections which are clear are the following: — (i) that the provisions are bad in that they are meant to deprive the land owners of their inherent right to sell their lands at their own free will, choice and at the competitive rates prevailing in the open market. (/"/) they are repugnant in so far as they provide for "interest" on compensation, which usury is banned in Islam. (///) they are repugnant since the Injunctions contained in the Holy Quran and Sunnah require liberal assessment of the value of the land in accordance with the prevailing marke valuet. (iv) they are bad since the Quran and the Sunnah require specification for the purpose for which the land is required, fixation of the exact area and particulars of the land to be acquired, issuance of at least three Notices of acquisition on the land owner concerned, proper enquiry to decide whether the land is surplus to the requirements of the land owner, and it is not the only means of livelihood and maintenance if the family, the acquisition of a particular land shall not create any impression of discrimination on the land owner, the acquisition proceedings should be dropped if the owner does not Te;pond to the Notice or refuse to sell the land and that the com­ pensation should be assessed and paid before entry upon the land. 5. O i the one hand it is urged in the petition that there should be different notices in regard to acquisition, on the other hand exception has been taken to th ; nrov;sio:n >f La i J A:quisiiio;i Ac; which provide for such notice; and notifications on the ground that they complicate the matter and on amount of th^e provKkin-; the assessment is never in accordance with the prevailing market rates. 6. The main questions, therefore, which are raised are two-fold. Firstly there can be no acquisition without the permission of the owner and secondly that the compensation should be liberally, fixed and paid before entry upon the land. 7. The first question was considered in the case of Muhammad Amin ly. The Federation of Pakistan . (P L D 198! FSC 23) and it was held that iv is open .to the Gjvernm^nt to acquire lands of others without the ^consent of the owners for public purpose. But the general rule is that fits market valuj should be paid to the owner. To this may be added a passage from "Alamwal Wa Mjzariat ill Aqd fil fiqh hlami" by Doctor Muhammad Yousaf Moosa, P. 202 :— "The ownership of a person cannot be disturbed by force .................. except ; ('i) when it is in the public interest like (construction of) roads, bridges or for using it as or for expansion of mosques etc. in all or any of such cases the ownership of the properties will be taken for public welfare and the owner will be paid its price even though he is not willing (to part with the properties) Same opinion is given by Dr. Abdul Rarzaq Sinbauri in Masadir ul Hag fil fiqhll Islami. Vol. II pp. 194-195. 8. This is in a way conceded in para. 21 of the petition where it is said that there are examples and precedents of the Holy Prophet as well as the rightful Caliphs of acquisition but it ts urged that acquisition was restricted strictly for defence purposes and for new settlements or for expansion of growing towns and cities, though as seen above the validity of acquisition depends upon its being in public interest. 9. In the present case the acquisition is by the Karachi Development Authority which is a Corporation set up by Presidential Order No. 5 of 1957 inter alfa to cope with the expansion of Karachi and for that purpose to prepare certain schemes and to implement them. Section 29 provides that the improvement schemes may provide for the development of land for housing or rehousing, clearance or improvement of congested areas, cons­ truction of houses, flats and other kinds of residential premises and of industrial, commercial and other buildings for community facilities, such as slaiigeter-houses, vocational training centres, the closing' alteration or demolition of any dwelling or portion thereof unfit for human habitation, construction and alteration of streets etc. levelling, paying, metalling, flagg­ ing, channeling, sewering and draining of the. streets so constructed or altered and' the provision therein for lighting and sanitary facilities, sanitation and conservancy for the area comprised in the scheme, drainage and sewerag.e for the improvement of any ill-drained or i'nsanitary locality, etc. etc. 10. It is clear from these provisions that undoubtedly this is tor a public purpose for which the Karachi Development Authority frames this scheme and acquires land and section 28 righiiy provides that all schemes framed under this order and operated by the Authority or by an organisatioa sponsored by tbe Authority sbai) be deemed to be schemes for a public purpose. 11. It is admitted that the land of the petitioner has been acquired! for the purpose of Scheme No. 28 of the Karachi Development Authority! wbjch obviously )s /£>/ sxpanvon of )he grpyy'wji Cosmopolitan ciiy of 1 Karachi'. This clinches, the matter. 12. Some objections have been raised about the land being acquired for the purpose of a company. This objection is not valid in view of the fact that Karachi Development Authority is a Corporation which has been set up for the purpose of looking after the development of Karachi aivJ ,providing for different amenities including amenity of accommodation to the inhabitants thereof. It is not a company in that sense in which the objcct-i lion is raised. However, the acquisition for the purpose of company maySC also be for a public purpose as setting up of industries in the country is, obviously a public purpose. • 13. The Land Acquisition Act provides for various Notices. The first Notice is by notification under section 4 issued when' it appears to the Provincial Government that land in a locality is needed or likely to be needed for any public purpose. Thereafter any officer of the Government can enter upon the land in order to ascertain whether the land is adapted for such purpose. Any person interested in' the land is entitled under section 5-A to raise objection against the proposals which have to be decided. Another notice is provided in section 6 that a declara­ tion shall be made that any particular land is needed for a public purpose or for a company. After that the Collector on receiving a direction for taking order of the acquisition of land shall cause the land to be marked out. Thereafter a notice under section 9 shall have to be issued stating that the Government intends to take possession of the land and (Liat claims to compensation for all interests in such land may be made to him. Under section 11 the Collector shall proceed to enquire into the objections filed after the issuance of Notice under section 9 and shall make an award Inter alia of the compensation which in his opinion should be allowed and of.the apportionment of the said compensation among all the persons known or believed to be interested in : the land. This award is no doubt subject to the right of the aggrieved party who does not accept it to approach the Court for fixing the correct compensation. After the award the Collector is entitled to take possession of the' land undet section 16 which shall vest absolutely thereafter in the Government. These provisioni are, however, subject tp section 17 which in case of urgency permits the taking of possession of the land on the expiration of 15 days from the publi­ cation of the notice under section 9 even though the award has not been made. Section 31-34 deal with the payment of compensation and sub­ section (1) of section 31 provides for the payment of the campensation soon after the making of the award Sections 35—37 deal with temporary occupation of land required inter alia for a public purpose for a period not exceeding three years from (he commencement of the occupation. Sections '52, 53 and 54 dea! with certain procedural matters including the extent of applicibility of the Code of Civil Procedure and a provision of an appeal. !4. The acquisition of land for a public purpose even in Islam is per­ mitted. All these different provisions advance the interest of the owner of the land. For example without a notice under section 4, no officer of the Government is allowed to enter the land sought to be acquired. It gives opportunity to the owners and persons interested to raise objections to the acquisition even before the start of acquisition proceedings which commence with the declaration under section 6. The assessment of compensation generally precedes the taking of possession except in case of urgency. An objection is taken to the award of interest on compensation but that is a matter in which we have no jurisdiction. All other provisions e.g. provisions about notices look after the interest of the owner of the party also. They cannot be said to be repugnant to the Holy Qur'an and the Sunnah. Even the petition does not show how the provisions of the Act and the Order are in any way repugnant to the Holy Qui'an and the Sunnah. 15. The objection that in Islam, payment of compensation should precede the taking over of possession is true to the extent that the jurists have given these opinions in the interest of the owners but if the compen­ sation ic paid later, there is nothing in the Holy Qur'an or the Sannah to which that procedure may be said to be repugnant. They may be cases of urgency when assessment of the compensation may not be possible. The expediency and the public interest for acquisition cannot be sacrificed to such a rule which is not in the nature of a Qur'anic Law. 16. While hearing the arguments from the Advocate-General, Sind and the counsel for the Federal Government, we were disposed to consider whether the provision of section 23(1)(/) is not repugnant 10 'he Holy Qur'an or the Sunnah. This clause provides that the market value of the land shall be determ-ncd as on the date of the publication of the no'ificaiion under section4(1). As regards Karachi Development Authority, Article 45 of Presidential Order No. 5 of 1957 provides for issuance of u notice whir'a according to Article 2 of the Schedule thereof is the equivalent of section 4(1) of the Land Acquisition Act. The first claus: of section 23(1) of the Act is thus to be read as laying down that the market value of (he land shall be determined as at the date of first publication of the notice i nder section 45 of the Karachi Development Authority Order, 1957. 17. The question was whether the determination of the market value of a date when the Government has not even started the proceedings for acquisition (which as stated above start af'.er notification under section 6 o the Act) is not repugnant to the Holy Quran and the Sunnah. However, we find that we are not called upon !o render a judgment en that part since section 23(1) is not challenged. We cannot interfere with the said section without issuing a notice to the Government concerned for exercise of suo motu jurisdiction under Article 203-D of the Constitution. 18. We dismiss this petition. However, we may clarify-that it will be open to the petitioner to file another petition on the above point if he is so advised. (TQM) Petition dismissed.

P L J 1983 FSC 81 P L J 1983 FSC 81 (Original Jurisdiction) Present : justice aftab hussain, chairman, justices zahoorul haq, kari mullah durrani, ch. mohammad siddiq & malik ghulam Au, members KHALID ABDUR RAOOF—Petitioner Versus PRESIDENT OF PAKISTAN and Another—Respondents Shariat Petition No. 4/1 of 1981. decided on 3-10-1981, (i) Constitution Of Pakistan , 1973— —Art. 203-B & Zakat and Ushr Ordinance (XVHF of 1980)—Repugnancy of provisions of law to Injunctions of Islam—Muslim Personal Law— Jurisdiction of Federal Shariat Court to make declaration regarding— Held : Zakat and Ushr Ordinance, applying exclusively to Muslim citizens of Pakistan as well as bodies corporate or incorporate having such citizens, to fall within definition of Muslim Personal Law and as such to be immune from challenge before Federal Shariat Court. [P. 83 ] A (ii) Constitution of Pakistan , 1973—

Art. 203-B & Zakat & U>hr Ordinance (XVII! of 1980)—Repugnancy of provisions of law Injunctions of Holy Quran and Sunnah—F.scul Law— Exclusion from ambit of 'law' for 3 ye<ir~Hi;M : Zakat and Ushr Ordin­ ance dealing with finances by Sahib-Nisab and expenditure irtter alia on indigent and needy being fiscal measure, Ordinance (XVIII of 1980) including Zakat and Ushr (Amendment) Ordinance (L1I of 1P80) to be immune from attack before Sbariat Court. [P. 84 ] C (iii) Words & Pbrases—

Word "Fiscal"-Meaning of. [P. 83 ] B Black's Law Dictionary & Oxford English Dictionary ref. Mr. Ghulam Mustafa Awan, Advocate for Petitioner. Date of bearing : 3-10-1981. Justice Aftab Hossain, Chairman.—The Zakat and Ushr Ordinance XVIII of 1980 was promulgated on the 20th of June, 1980, for collection of Zakat on the items stated in its first schedule on the rate stated in the same. This law was applied to Muslim citizens of Pakistan and a company, or oiber association of persons, or body of individuals, wheiher incorporated or not, majority of the shares of which is owned, or the beneficial ownership of which is held, by such citizens. . • 2. 'As a sequel to the protest of Muslims belonging to certain/?^ which did not allow Zakat to be paid from the items slated in Schedule 1 of the Act an Amendment Ordinance known as Zakat and Ushr (Amendmeni) Ordinance LM of 1980, was enforced. It provides for refund of Zakat deducted at source to a person who made a declaration. It is as follows :— "Provided that no Zakat or Ushr shall be charged or collected on compulsory basis in respect of the assets or the produce of a person who, within (he perod of three months preceding the Valuation Date files with the Deducting Agency, or with ihe Local Committee in the case of Ushr, a declaraiion in the prescribed form sworn by him before a magistrate, an Oath Commissioner, a notary public or any other person authorised to administer oath, iri the presence of two witnesses who identify him, to the effect ihat he is a Muslim and a follower of one of the recognized fiqhs, which he shall specify in the declaration, and that his faith and the said fiqh do not oblige him to pay the whole or any part of Zakat or Ushr in the manner laid down in this Ordinance : Provided further that, where for any reason Zakat or Ushr.is collected on compulsory basis from such a person and he does not wish to leave it in the Zakat Fund as Sadaqah or Khairat in 4he name of Allah as a manifesta'ion'of the unity of the Urnmah and claims refund, on the basis of a declaration as aforesaid filed -by him within the period specified in the first proviso or within such further period as maybe prescribed the amount so collected shall be refunded to him in the prescribed manner", and "(3)-A. The Federal Shariat Court may, on the application of "any person, decide the question wheiher a declaration such as is referred to in the first or second proviso to subsection (3) made by any person is valid according to ihsfiqh he professes to follow ; and, if the Federal Shariat Court decides that the declaration is not valid, such person shall, without prejudice to any other action that may be taken against him under a.iy oiher law, be liable to pay Zakat or Ushr, as the case may be, in the manner laid down in this Ordinance." 3. This provision of the Amendment Ordinance has been challenged before this Court on ground of its repugnance to the Qur'an and the Sunnab. 4. We have heard Mr. Ghulam Mustafa. Advocate at length on the question of jurisdiction as well as merits. Article 203-C of the Constitution authorises this Court to decide a question whether any law or provision of law challenged before it is repugnant to the Holy Qur'an and the Sunnah. The term law is defined in Article 203-B but it excludes from its ambit the Muslim Personal Law and until the expiry of three years any Fiscal Law or any Law relating to the levy and collection of taxes, etc. 5. The question that has arisen in this case on the point of jurisdiction is whether the provisions of Zakat an,d Ushr Ordinance are included within the category of Muslim Personal Law as well as Fiscal Law. 6. The first question has been answered in the judgment of the Supreme Court of Pakistan in Federation of Pakistan v. Mst Farishta (PLD 1981 SC 120). The Supreme Court was confronted with the question whether the provisions of Muslim Family Laws Ordinance cquld be deemed to be the provisions of Muslim Personal Law. This, question was answered in the affirmative on the ground that Muslim Personal Law in Article 203-B :— "means such codified or legislated law which is being applied to Muslim Citizens of Pakistan as or with the denomination Muslim to Muslim which governs their person as such and as distinct from General Law of the Land which applies to every body." 7. Since the Zakat and Ushr Ordinance, 1980, applies exclusively tol Muslim Citizens of- Pakistan .as well as bodies corporate or incorporatcL having such citizens, it must fall within the definition of Muslims Personal^ Law under Article 203-B and should be treated to be immune from challenge! before this Court. 8. This Law is also Fiscal as will be clear from the dictionary meanings of that expression in Black's Law Dictionary : "In general having to do with financial matters, i.e. money, taxes, public or private revenues, etc. Belonging to the fisc or public treasury. Relating to accounts or the management of revenue. Or pertaining to the public finances of a Government or, private finances of business." In the Oxford English Dictionary also similar meanings arc given : "of or pertaining to financial matters in general." 9. Faced with this the learned counsel argued that Zakat and Ushr Ordinance is a piece of legislation promulgated to enforce a pillar of Islam and as such it is only an "ibadat". However he had to concede that in that case Zakat could be called by the name of "fiscal ibadat" or " mali tbadat" Yousuf Qarzavi an eminent writer, in his book " Fiqh-ul-Zakat" Vol.-1. p. 28 calls it "Darihat-ul-Muqarrara" or compulsory tax though he distinguishes it in certain respects from taxes imposed under the Roman Law (see. p. 995 of Vol. II of the same book). 10. Irfan Mahmood Rana in bis book "Under Umar The Great" at p. 54 denominates it as a "most important tax". In " Ahkam-ul-Sultania" by Maawardi and ''Kitab-ul-Amwal" by Abu Obaid it is taken as a source of income for the Bait-ul-Mal or Muslim Government exchequer. There can therefore be no coubt that Zakat and Ushr Ordinance which deals with finances payable by those who are " Sahlb-e-Nlsab" and expendible on Inter alia the indigent and needy is a fiscal measure. For this reason too, the said Ordinance including the Amendment Ordinance LII are immune from attack before the Shariat Court . It is not necessary to go into the merits. The petition.is, therefore, dismissed. (TQM) Petition dismissed.

P L J 1983 FSC 84 P L J 1983 FSC 84 (Original Jurisdiction) Present : aftab hussain, C.J. zahoorul haq, ch. muhammad siddiq, malik ghulam ali& pir muhammad karam shah, JJ ZAHEER AHMAD—Petitioner versus FEDERATION OF PAKISTAN —Respondent Shariat Petition No. IS/Lof 1981. decided on 28-7-1982. (i) Constitution of Pakistan , 1973—

Art. 203-D and Offence of Qazf (Enforcement of Hudood) Ordinance (VIII of 1979)—S. 3—Repugnancy of provisions of law to Injunctions of Islam—Qazf—-Offence of—Imputation .of Zina against male—Punishment provided for—Challenge to—Petitioner challenging provisions regarding inclusion of male among those against whom imputation of zina made punishable on ground of same being repugnant to'Injunction of Islam —Held: Verse. 19 ot^ufa-e-Noor (Chap. XXIV) providing for general injunction regarding offence of Qazfio be directly applicable to male and female slanderer and slandered alike and to slandered person belonging to other sex in same category making punishable such imputation against any body irrespective of whether slandered be male or female—Held further : Imputation of zina when made against male, same also to involve imputation against fern ale if second party to such offence and provisions of verse 4 of Ch. XXIV as such to be directly applicable even though person against whom imputation specifically made be male. [P". 87 ] A d B Holy Quran, verses 4, 19 & 23 of Surr-a-Noor (Ch. XXIV) ; Kitabul Flgh Alal Muzahibll Arbaa, Vol. V, P. 143 ; Kanzul Ummal. Vol. V, P. 561 & 563, 565 & 567 ; Assunnal Baihaki, Vol. VIII, Pp. 252 & 253 & Moatta by Ailama Waheeduzzaman, P. t>03 ref. (ii) Holy Quran — ——Interpretation of—Principle of— Held : Inclusion of "femala" into word in regard (o "male" only to be established principle of interpretation of Holy Quran. [P. 88 ] £ (iii) Islamic Law & Jurisprudence— ——Slander—Meaning of— Held : Slander to be maligning believing men and believing women undeservedly and to be condemned irrespective of whether slandered be male or female. [P. 87 ] C (ir) Islamic Law & Jurisprudence— -— Taghlib— Principle of—Applicability of—Held : TagMlb to be applying rule of one type of thing over another or preferring (for purposes of description) an object if such description can apply equally to other also or applying same Word to both or considering two rl.fferent things like two similar things. [P. 87 ] D Tadabburul Quran ; Al-Burhan Fl Ulumil Qtirar ZarkasM Vol. Ill, . P. 302 & Arabic English Laxicon by E.W. Lane, Boot 1, Part. 6, P. 22SO ref. Mr. Shamim Abbas Bokhart, Advocate for Petitio ier. Syed Rlazul Hassan Gilaui, Advocate for Respondent. judgment Aftab Hussain, C. J.— By this petition provisions of sections 3, 5 and 6 (b) of ihe Offence of Qazf (enforcement of Hadd) Ordinance, Vlll of 1979 have been challenged by the f etitioner. Section 3 d.fines Qazf : "Whoever by words eiihei spoken or intended 3 be read, or by signs or by visible representations, makes or publishes an imputation of zlna concerning any person ir:tending to harm, nr knowing or having reason to believe that such imputation will harm, the reputation, or hurt the feelings, of such person is said, except in the cases hereinafter excepted, to commit Qazf.' By virtue of explanation one to this definition, such an imputation of zlna against a dead person tlso may amount toQdzf. 2. Section 5 provides that whoever, being an adait. intentionally and without ambiguity commits qazf<.f zlna liable to hadd against a particular person who is a muhsan and capable of performing sexual intercourse is, subject to the provisions of this Ordinance, said to commit qazf liable to hadd. Toe term muhsan is explained as a sane and adult Muslim who either has had no sexual intercourse or has bad such intercourse only with his or her lawfully wedded spouse. 3. Section 6 deals with proof of qazf liable to hadd. Clauses (a) and (c) deal with the two conventional methods i.e.. bv ihe confession o), according to which no other proof of qazf is required, if the deceased commits qazf in the pre­ sence of the Court. 4. The- arguments of the learned counsel are that section 3 is bad for two reasons—-firstly that it makes imputation against a male person as well as a deceased person punishable, although according to the Quranic Verse (Q 24 : 4) only those persons can be punished who "accuse honour­ able women". '). The learned counsel raised an objection to the inclusion of capa­ bility of performance of sexual intercourse in the definition of Muhsan. 6. Regarding clause 6 (b) he submitted that the position of a Qazi being thut of a witness if the qazf is committed before him, he cannot render judgment in the matter. Moreover no proceedings in Qazf can be taken unless there is a complaint before the Court on behalf of (he person aggrieved. 7. The objections against sections 5 and 6 (b) was not pressed. The learned counsel stressed during his argument only his objection regarding the inclusion of male amonj; those against whom imputation of zina is made punishable. 8. The learned counsel referred to verses 4 and 23 of Sura-e-Noor (Chapter 24) in support of his argument. The English translation of these verses is as follows : — Verse 4. —"And those who accuse honourable women but bring not four witnesses, scourage them (with) eighty stripes and never (afterward) accept their testimony—They indeed are evil-doers." Verse 23.— "Lo ! as for those who traduce virtuous, believing, women (who are) careless, cursed are they in the world and the Hereafter. Theirs will be an awful doom" 9. He elaborated his argument by making a reference to the incident of Ifk and submitted that although Sat'wan son of Mottal Salmee was also blamed with Hazrat Aiysha but Mistah, Hamma Bmt-e-Jahsh and Hassan Bin Sabit were punished wiih regard to the imputation made by them against Hazrat Aiysha and for thi^ reason the two verses referred to above also contain a reference to female only and not to male. 10. There was ah incident during the time of Hazrat Umer in which imputation of zina '-vas made agajnst Mogheera bin Shuba. Four witnesses were produced in support of this charge but one of the witnesses was not able to identify whether the woman with whom he saw the sexual act being performed was a stranger or the .wife of the accused. The 3 witnesses were punished for Qazf (Kitabul Fiqh Alal Muzahibil Arbaa, Vol. V. page 143). 11. In early Islam slander, even though in the form of innocuous abuse was discouraged, obviously in order to protect the Umma from mutual strife or mischief. According to Jurabi and Ibn-e-Abi Sabra Hazrat Umer punished for calling name to other. (Kanzul U/nmal, Vol.' V, page 561). Ibn-e-Umef said that Hazrat U.njr used to give a beating for calJing another Faliislia (m.w mian simply shameless or even a whore) (ibid). There is another Hadis that Hazrat Umer punished with stripes, a peison who made a general impuiation of this iype against Muslim women (Assunanul Kubra Baihakt, Vol . V1H, page 253). Hazrat Ali said ihat if someone calls another £~ I (wicked) or s follows : — "Lo ! those who love that slander should be spread concerning those who believe, theirs will be a painful punishment in the world and, the hereafter. Allah Knoweth. Ye know no't." The verse is applicable to male and female slanderer and slandered alike- It puts a slandered person belonging to another sex in the same category and promises a painful punishment not only in the hereafter but also in this World. This verse thus makes punishable in this World such imputation against anyone irrespective of whether the slandered is male or female. The punishment in verse 4 of Sura-e-Noor was described wiih reference to woman only because of the particular incident of Ifk which does not mean that it excludes from punishments those who slander males. 16. In fact when imputation of ztna is made against a male it also involves the same imputation against a female, though unnamed, who is always a second party to such offence. This makes the provision of verse 4 directly applicable even though a person against whom the imputation is specifically made is a male. If Hazrat Umar had passed an order of punish­ ment for slander against the women in general there is no reason why this implied slander against a woman though unnamed should go unpunished. 17. There is another verse No. 58 of Sura-e-AIakzab, (Chapter XXXIII). In this verse slander is defined as maligning believing men and believing women undeservedly. It does not therefore stand to reason that although slander is condemned irrespective of whether the person slandered be a male or a female but the punishment in this World should be given on an offence committed with regard to female only. 18. While commenting on the word "JJJ^I" in the opening part of verse 4 of Sura.e-Noor i.e., 'oUv»>»»J' o^-«^ ji^"->'» it is said in Tadabburul Quran that this word which refers to male only includes women also on the principle of Taghlib. Now Taghlib is defined as applying the rule of one type of a thing over another or to prefer (for 'the purpose of description).! an object, if the de^cripiion can apply equally to ;he other (object) also, o, 1 ' to apply the same word to both (on the principle of interpretation) or to consider two different tilings like two similar things. Al-Burhan // Ulumlt Quran Zarkashi Vol. Ill, page 302). The root word of Taghlib is Ghallaba which means to overcome, 10 conquer, to subdue, to master, surpass, pre­ dominate. The phrase Ghallaba "j±\ ^ Jl-J k^ifr" means 'he made a word to predominate over another word'. Similarly the sentence •'^^Jl Jc ;«.«JI »,.»Ai7 .»" in it is the attribution of predominance 'to tht moon over the sun or "j^' ,J e Js u ' s-^" •«•" in it is the attribution of predominance to the night over the day (Arabic English Lexicon by E. W. Lane, Book I, Part 16. page 2280). If therefore on account of this attribution of predominance the name of one is given, though qualitatively the other cannot be excluded from it, the inclusion of that other in ft will be presuraed on the principle of Taghlib. 19. It is on this principle that the commentator in Tadabburul Quran treats the word "^JJl" (who) which is referred to a male only as inclusive of a female slanderer, since there is no reason why a female should be excluded from the doom or punishment.

20. Even otherwise the inclusion of a female into a word which is in jregard to male only is an established principle of interpretation of ths fiJHoly Quran also There is no reason why, on the principle 01 Taghlib the Ipunishment should not be the same if the person slandered is a male. 21. The principle of Taghlib can be applied for interpretation of the word Muhsanat (chaste women) in verse 4 of Sura-e-e-Noor. In Ahkamul Quran by Ibn-e-Arbi, Vol. Ill, page 1335 is recorded the opinion of Imamul Harmain that man is included in the female though the majority view is that this is on the basis of Qias. The view of Imamul Harmain is prefer­ able since as stated above verse 4 is only illustrative. 22. In this connection reference may also be made to the principle of Dalalatunnas i.e. something which emanates directly from the verse. (Usulul Fiqh by Abu Zahra, pages 247 and 248). While dealing with Qias, Abu Zahra writes that Quran provides for the punishment of slave girl as being half of what. is permissible for free women. It has been held that it is also proved from this that a male adulterer if slave would also be likewise punished. There are some (Jurists) who say that the male can be included by application of the principle of Qias but some of the learned apply the principle of Dalalatunnas tp it which means that male is included in the verse though only a female slave is mentioned there.. 23. As a matter of fact the second opinion which applies the principle of Dalalatunnisa is preferable. If verse 4 of Sura-e-ffoor is read in the light of verse 19 of the same Surah and verse 58 of Surah Al-ahzab, the applicability of verse 4 in case of imputation against males will emerges from and flow out of Nas (Qur'anic Verse) itself. This would justify thr "applicability of Dalalatunnas. But it would lead to the same conclusion whether the principle of Qias or of Dalalatunnas is applied. Qias is a method of finding out the applicability of injunctions to all matters in which similar rationale is to be found. It is a means of discovering the •scope of a verse. Even the discovery of Haram. or Hilal (Prohibited or permitted) is made by applying the principle of Qias. If Qias is applied for discovery of the scope of verse 4 of Sura-e-Noor and the same rule is obtained, there is no reason why it should not be treated ai within the scope of the Holy Qur'an. . 24. The petition fails and is accordingly dismissed. <TQM) _ Petition dismissed.

P L J 1983 FSC 89 P L J 1983 FSC 89 (Appellate Jurisdiction) Present : justice aftab hussain. chairman & justice chulam am. member NAZIR AHMED and Others—Appellants versus THE STATE— Respondent Cr. App. {-Jo. 51/L of 1981, decided on 23-1-1982. (1) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— — S 12 & Pakistan Penal Code (XLV of I860)— S. 377— Unnatural offence — Kidnapping in order to subject person to — Two of three appellants com­ mitting carnal intercourse with viciim against.order of nature caught at finding all accused fit to perform sexual inieicourse arvd victim having been subjected to carnal intercourse — Viciim complaining of pain on walking, defac^ion and examination — Doctor also expressing opinion regarding possibility of injuries on person of victim having been cjuscd by one as welt as more inan one pene(rarion—//M/: Prosecution siory having been corroborated by medical evidence, certain contradictions pointed out in statements of witnesses to be of no significance — Carnal intercourse against order of nature in circumstances, held, committed by all appellants with victim. [P. 92 ] A (li) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— - S. 12 — Kidnapping or abducting in order to subject person to unnatural lust — Offence of — Conviction for — Evidence — Quantum of — Held : No particular number of witnesses having been provided by statute, conviction of accused to be made even on sole testimony of victim., [P. 92 ]'B (III) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— -- S. 2(o)~ Adult— Definition of— Puberty— Attainment of— Held: On attainment of puberty, male or female of even lesser age then prescribed in section to be adult. [P. 93 ] E (iv) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— -- S. 7(1) -Proviso— Zina bil jabr — Commission of by non-adult — Punish­ ment of whipping — Discretion of Court — Held: In case of Zina bil jabr by non-adult not under age of 15 years, provision about punishment of whipping to be mandatory while for person less ihan 15 years of age, Court 10 hjve jurisdiction to award or refrain from awarding sentence of whipping. [P. 93 ] F (v) Execution of Punishment of Whipping Ordinance (IX of 1979)— -- Ss. 3& 5. read with Off --nee ofZma (Enforcement of Hadood) Ordinance (VII of 1979)— S. 12, Whipping Act (IV of 1909) -S. 5 & Code of Criminal Procedure tV of 1898) — S. 302 —Punishment of whipping — Administrate". on non-udul 1 — Held : No embargo to be placed under law in administra­ tion of punshment of whipping on non-adult person of I 3 or 14 years — Held further : N > exemption 10 be provided to minor from punishment of whipping under Ordinance (IX of 1979) but in case of weakness of convict stripes to be applied in such manner and with intervals as not to cause his death. [Pp. 92 & 93] C& D (vi) Execution of Punishment of Whipping Ordinance (IX of 1979)—

S. 3 and Code of Criminal Procedure (V of 1898)—Ss. 390 to 394— Punishment of whipping—Execution of—Provisions of Code repugnant to provisions of Ordinance—Applicability of— Held : Ordinance (IX of 1979) to override provisions of Cr. P.C. to extent of iheir repugnancy to provision of Ordinance. [P. 93 ] D (vii) Execution of Punishment of Whipping Ordinance (IX of 1979)—

S..5 (c)—Sentence of whipping—Execution of—Public place—Fixation of— Held: Court to be competent to fix any place other than appointed by Provincial Government for any particular case keeping in view import­ ance of case and necessity of administering and admonishing potential criminals in locality—Such power, held further, to be exercised only in rare cases lor special reasons. [Pp. 94 & 95] H (•nil) Execution of Punishment of Whipping Ordinance (IX of 1979)—

S. 5 (/)•—Sentence of whipping—Execution of—Public place—Fixation of —Held : Power to fix public place for administering of sentence of whipping to rest in Provincial Government as well as court passing sentence of whipping—Held further : Selection of site in public place lor whipping convici sometime to require elaborate arrangements for maintenance of law and order for ensuring safety of convicts and also for closing channels of escape, only Government/District Administration to be in position to judge fitness of place for such purpose. [P. 94] G Mr. Muhammad Ismail Qureshi, Advocate for Appellants. Col. Mushtaq, Advocate for the State. Date of hearing : 23-1-1982. judgment Justice Aftab Hussain, Chairman.—This is an appeal by the appellants against iheir conviction and sentence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 ordered by the learned Sessions Judge, Rahimyar Khan vide order dated 7-9-1981. The learned Sessions Judge semenced Nazir Ahmad on account of tender age to one year R.I , 10 w' ips and a fine of Rs. 200, or to undergo in default of pay­ment of fine to three,months R.I., and to Sumar and Katiya to 4 yea/s R.I. each, 15 whips each and Rs. 200, fine each with, the same imprisonment in default of payment of fine as ordered for Nazir. 2. The prosecution case is that on 12-4-1979 at about 4-00 p.m. when KhaMd P.irvaiz (P. W 3) (victim) aged I 3 years and Tariq Shah (P. W. 4) aged i I years were playing at about a bigha or one and a half bigha from the village, the three appellants came there and asked them to accompany them to pivk up honey from the trees. They refused but they were taken by force to the sand mounds at a distance of two or 2£ acres from that place. Katiya held Tariq Shah (P. W. 4) but the other two lifted Kbalid Pavaiz in the manner that Ndzir Ahmad had his head in his grasp and Sumar held him by hjs legs. Tariq Shah, however, escaped and informed and brought with him (P. W. 5) Abdul M ijid, his uncle and Muhammad Hanif (P. W. 6). In the mjaniime the three appellants out of whom Sumar was armed with a knife and Katiya had a hatchet, tied down the hands of Kbalid Parwaiz (P. W. 3), with the muffler of one of the appellants, and his leg? with his handkerchief. Then they committed with him carnal intercourse against the order of nature, On the arrival of the witnesses the appellants tried to escape but the attempt of Nazir and Sumar were foiled and they were caught and were taken to the house of Mohammad Ashraf Lambardar who is said to have advised them to lodge an F.I.R. 3. The F.I.R. was recorded on the same date at about 6-30 p.m on the basis of the statement of the victim recorded by Abdul Razzaq, A.S.I, who is said to have met the complainant party while he was on his way to Police Station Saddar, Sadiqabad. He thereafter arrested Nazir Ahmad and Sumar from the custody of the complainant party. 4. The prosecution version was proved by the above-named 4 witnesses. (P. W. 3, the victim, P. W- 4 Tariq Shah, P. W. 5 Abdul Majid uncle of the victim and P.W. 6 Muhammad Hanif) Mohammad Hanif was also stated by Khalid Parvez to be his uncle of Khalid Parvaiz but from the evidence of Mohammad Hanif it transpires that he is not related to the complainant party. It therefore, appears that Muhammad Hanif was called Chacha be way of respect, since he belongs to the village. 5. Dr. Abdul Wahab conducted the medical examination of not only the victim but also of the appellants. He found abrasions $x 1 /12" at 6 and 11-00 o'clock at the inner orifice of Khalid Parvaiz, According to him his rectal mucosa was congested. He took two anal swabs and sent them to the Chemical Examiner whose report is said to be positive but has not been relied upon by the Sessions Judge because it does not bear the signature of the Chemical Examiner whose name appears on it but is simply attested by an Assistant Chemical Examiner. ' 6. The Doctor also found that there was no reason to suggest that either of the 3 appellants was unfit to perform sexual act. He was also of the opinion that clinical and radiological age of Nazir Ahmad appellant was below 14 years. He found that Khalid Parvaiz had been subjected to carnal intercourse. Regarding the injuries, he was of the view that rt was ppssible that the injuries on Khalid Parvaiz could be caused by one penetration as well as many penetrations. In reply to a cross-examination question he said that it was possible that more abrasions could be caused with more penetra­ tions but it was not necessary because the condition of the abrasions could be aggravated at the weaker point already under abrasion. 7. The learned Sessions Judge was of the view that in view of this state­ ment it could not be said with certainty that the victim was subjected to sexual intercourse by all the 3 appellants. For this reason he did not punish the appellants under section 377, P.P.C. but convicted and sentenced all the appellants under section 12 which obviously was attracted to the facts of the case. 8. The appellants in their own statements, attributed their false involve­ ment to party faction between them and Abdul Majid (P. W. 5). In cross- examination of Abdul Majid and others the only suggestion is that the appellants used to damage his crops by driving sheep and goats into his field but he denied it. It, therefore, appears that there is no bad blood between the appellants and the complainant party nor their relations are in any way inimical to one another. 9. It also appears from the record that two of the appellants namely Nazir Ahmad and Sumar were caught at the spot and were arrested by the Police from (he custody of the complainant parly. According to the prosecu­ tion the two appellants who were Caught at the spot were taken to the house of Muhammad Ashraf who is ihe Lumbardar but Muhammad Ashraf, Lumbardar stated as D.W. I that he was at Sadiqabad when the said accused were caught hold by the witnesses and were, therefore, brought to his house in his absence. However, he admitted that he did not give evidence in defence of the accused persons before the Police during investigation nor did he appear in Court on summons. He admitted that he did not know of any dispute between the appellants and the complainant party prior to the occurrence. According to him the accused were arrested by the Police from the house of the complainant. 10. In view of the fact that Muhammad Ashraf did not give any evidence in defence of the accused before the Police and came to the Court on their request without summons, it 3ppears that he made the statement about his absence from the village when the accused were taken to his house, simply to help the appellants, otherwise there is no suggestion on the record to .this effect-to any of the witnesses. This story clearly appears to be an afterthought. But even Mohammad Ashraf corroborated the prosecution story that Nazeer and Sumar liad been caught by the complainant party and were arrested by the police from their custody. 11 The learned counsel for the appellant drew our attention to certain contradictions in the statements of the witnesses but we do not find such contradictions to be material or of any significance particularly when the prosecution story is corroborated by the medical evidence. We do not agree with the learned Sessions Judge that on the basis of the medical evidence any doubt could be there about the carnal act .being committed by all the three appellants, since according to the Doctor the same abrasions could be result of more than one penetration. It is also in evidence of the Doctor that the victim ( P. W. 3) complained of pain on walking, defacation and examination [t, therefore, appears that all the three persons had committed carnal intercourse with him against the order of nature. However, we need not pursue this paint further since the appellants had been acquitted under section 377. P.P.C. and it is not in our jurisdiction to set aside that acquittal in the absence of a cross appeal for that purpose. We are. however, in full agreement with the learned Sessions Judge that this was a clear case covered by section 12 of the Ordinance. The conviction of the appellate was rightly ordered. , 12. The learned counsel howevci, argued that there should be at least two witnesses to prove a case under section 12, since in Sharia the evidence of two witnesses is absolu:eiy necessary. He also submitted that the sentence of whipping could not be administered on the minor namely Nazir Ahmad. . - 13. The 6rst point is of no merit since the statute does not provide for line number of witnesses. The Court could therefore convict the appellants "jeven on the sole testimony of the victim. 14. The learned counsel could not show us anything in support of the econd proposition There is no embargo either under Cr. P.C. or Ordinance VII of 1979 or the Whipping Act, 1909 on the administration of punishment of whipping on a boy aged thirteen or fourteen years. Ihe Whipping Act in section 5 provides for whipping of juvenlie offenders meaning less than sixteen years of age. Section 392, Cr. P.C. provide': far a maximum of thirty stripes for a person of sixteen years of age or more and IS stripes for a person under sixteen years of age. Section 393 exempts certain categories! of persons t.e, females or males over forty-five years old. but no exemption! is given to non adults. The exemption in case of persons above the age of] forty-five was nullified by a 1962 amendment in the Whipping Act in respect of certain offences but obviously these exemptions cannot be applied to ~" convicts under the Hudood Ordinance. Moreover, section 20 (4) of the Offence of Ziaa (Enforcement of Hudood) Ordinance, 1979 makes section 391 (3) and section 393, Cr. P.C. inapplicable to punishment of whipping under that Ordinance. Section 3 of the Execution of the Punishment of Whipping Ordinance, 1979 further provides that the Ordinance overrides that law. It therefore overrides provisions of Cr. P.C. to the extent that the provisions of the Code are repugnant to the provisio»s' of the Ordinance of 1979. But the Ordinance does not provide for exemp-j tion of a minor from the punishment of whipping. It merely provides that in case the convict is too weak, the number of stripes shall be applied in such manner and with such intervals that execution of the punishment will not cause the death of the convict. [Section 5 (b)]. Now the provisions of the Offence of Zina (Enforcement of Hadood)) Ordinance. 1979 may be analysed. Subsection (2)(o) thereof defines adult a meaning a person who has attained, being a male, the age of eighteen years' or being a female the age of sixteen years, or has attained puberty. Thus a male or female of lesser age than prescribed, above can also be an adult if| V' he/she has attained puberty. Section 5 provides for commission of z/ffa liable to Hadd by an adult, section 6 provides for commission of zina-bil-jabr by an adult (since its subsection (2) provides that the offence must have been committed under the circumstances specified in section 5 (I) in which adulthood of the offender is a necessary condition) and section 7 provides for punishment of both types of zina when committed by a non-adult. Subsection (I) of section 7 states that such a person shall be punished with imprisonment of either description for a term which may extend to five years or with tine or both, and may also be awarded the punishment of whipping not exceeding thirty stripes. To this provision is added a proviso which significantly answers the question before us. It is to the effect : — "Provided that, in (he case of zina-bil-jabr if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded - with or without any other punishment." Thus in the case of zina-bil-jabr by a person who is not an adult but is not under the age of fifteen years, the provision about punishment of whipping is mandatory. It follows that for persons less than fifteen years of ag-e it is within the discretion of the Court to award or refrain from awarding the sentence of whipping. The objection is without force. But this point hardly arises in this case. It is clear from the medical evidence that Nazir AHmad appellant has virtually been held to be an adult since he is capable ofj performing the sexual act which according to the evidence he performed. 15. The appeal is without merit and is accordingly dismissed. 16. It has come to our notice that the sentence of whipping is not being executed in a public place although section 5 (/) of the Execution of the Punishment of Whipping Ordinance, 1979 provides for such punishment to be executed at such public place as the Court may direct or the Provincial Government may appoint for the purpose. We have also been given to understand that no such place has been appointed by the Provincial Govern­ ment. In exercise of the power conferred by section 7 of the Execution of the Punishment of Whipping Ordinance, 1979 the Punjab Government made and notified rules (vide Punjab Gazette the extraordinary dated March 22, 1V79). Sub-rule (c) of Rule 2 defines "public place" as follows :— (c) 'public place" means the place mentioned in the order of the Court for the purpose of execution of sentence of whipping, but when there is no direction in the order of the Court it shall remain such place as may with the previous approval of Government be deter­ mined for the purpose by the concerned District Magistrate." Rule 3 is as follows :— "3. (i) The sentence shall be administered at the place mentioned in the order of the Court awarding the punishment, and if no such place is mentioned therein, at a public place as may be specified ' under these Rules. (») the places approved by the Provincial Government on recommenda­ tions of District Magistrate shall normally be used for whipping unless the Provincial Government in any particular case otherwise directs." We are however informed that no list of public places has been approved or prepared. 17. It is true ihat the power to fix the public place also vests in '(he Court passing the sentence of whipping and the Courts also do not exercise this power. The Courts and the Provincial Government are equally bound by law in ihis respect. But it appears to us that it would be more advisable if the Provincial Governments perform this duty without any further deluy. The selection of a site in a public place for whipping the convicts may sometimes require elaborate arrangements for maintenance of law and order, for ensuring the safety of the convicts from the vengeance of his enemies, if any. and for closing all the channels of his escape if he is a desperado. The Government or so to say, the District Administration only is in a position to judge the fitness of a public place for this purpose. The fixation of site by the Courts may sometimes create difficulties for the administra-' lion. It appears that for this reason ihe Provincial Government also has been empowered to fix public places under the Ordinance IX of 1979. Under the Cr. P.C. it is the prerogative of the Courts only to fix the place for whipping of convicts under the Whipping Act. But there are rules, as for example recorded in para. 56 of the Punjab Jail Manual, thai whip­ ping 'shall not be inflicted in public'. The Ordinance of 1979, however, specifically provides for execution of the sentence of whipping in a public place. It also empowers the Provincial Government in addition to the Courts to appoint public places for this purpose. It will be clear from this comparative study that the Provincial Government has been so empowered because of the provision of whipping conviccs in public places, which would require extra administrative arrangements of which the Government or its District Administration is ihe best Judge. IS. This does not, however, amount to making the Courts powerless. IThe Courts shall remain entitled to fix any public place for any particular Jcase other than the one appointed by the Provincial Government keeping in Jview the importance of the case and the necessity of administering and 'admonishing potential criminals in the locality. But this power may have to FSC 95 19. A copy of this judgment shall be sent to the Home Secretary of each Province in order to emphasize upon the Provincial Governments the necessity of appointing at least generally the public place in each city or town or locality where a jail is located. A copy shall also be" sent to the Sessions Judge of each district in Pakistan with directions for its circulation amongst the Additional Sessions Judges of the District. The Sessions and Additional Sessions Judges are directed to fix the public place for whipping at least till such place is appointed by the Provincial Government after which it would be within their discretion to fix a public place different from the one appointed by the Government whenever such a change be con­ sidered necessary in the interest of justice. 20. The whipping in this case shall be administered in the main bazaar of the city where the Jail in which the appellants are confined is situated. (TQM) Appeal dismissed.

PLJ 1983 FSC 95 PLJ 1983 FSC 95 (Appellate Jurisdiction) Present : aftab hussain, C.J. SHERA and Another—Appellants versus THE STATE—Respondent Cr. App. No. 10/L of 1982. decided on 9-5-1982. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10(2)— Zina— Offence of—First appellant enticing away wife of his brother and both living together apparently as husband and wife by having sexual intercourse with each other—Divorce deed placed o'n record by appellant and apparently executed after nine months of registration of case merely showing complainant having pronounced three divorces to second accusedjbut making 110 reference to oral talaq —Such deed also neither pro­ duced before Investigating Officer nor put to complainant in corroboration — Held: Such deed having not been put to complainant, story of divorce to be absolutely false—Held furthef : Divorce deed even if taken to be effective for severence of relationship of husband and wife, same to be sufficient to prove alongwith statements of accused regarding their having committed Zina with each other at least upto execution of deed- Appellants in circumstances, held, rightly convicted for committing Zina and no interference to be made with same. [Pp. 97 & 98] A C & E (it) Zina— -— Offence of—Penetration—Evidence of—Appellants admittedly living together, apparently as husband and wife and having sexual intercourse with one another—Appellants contending they married aficr divorce by complainant and never committed sexual intercourse till after marriage- Story of divorce proving absolutely false and alleged divorce deed never put to complainant in cross-examination— Held : Commission of sexual intercourse having been sufficiently admitted by appellants no evidence of penetration required to be produced—Evidence Act (I of 1872)— S. 18 & Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) —S.I0(2). [P. 98JS&C (Hi) Muslim Family Laws Ordinance (VIII of 1961)—

S.7— Talaq— Notice of to Chairman—Necessity of— Held : Relationship of husband and wife inspite of divorce not to cease to exist in case of non-compliance with provisions of section and absence of notice to amount to retraction of divorce—Complainant in case admittedly never sending any notice of divorce to Chairman Union Courcil/Union Com­ mittee— Held: Divorce, if any, to be ineffective and not to put end to relationship between complainant and his wife. [P. 98] D PLD 1963 SC 51 (at P. 88) ref. Mr. Shah AhmadBaloch, Advocate for Appellants. Sheikh Eja: AH, Advocate for the State. Date of hearing : 9-5-1982 judgment ,Shera and Mst. Jowye were convicted by the learned Additional Sessions Judge. Jhang. Shera was convicted by the learned Additional Sessions Judge by his order dated 20-1-1982 under section 10 (2) and section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced under the first section to 7 years' R.I. and 30 stripes and for the second offence to 7 years' R.I. and 10 stripes, Mst. Allah Jowye his co-accused was convicted under section 10 (2) of the above Ordinance and sentenced to 7 years' R.I. and 30 stripes. Hence this appeal by the convicts. 2. The admitted facts are that Amir complainant and Shera are real brothers while Mst. Ailah Jowye appellant had been married to Amir. On the 16th of March. 1980 a First Information Report was lodged by Amir in Police Station. Bhawana that Shera his brother had enticed away his wife Mst. Allah Jowye about 1J months ago and they were living together in adultery. He also complained that Shera had refused to restore his wife to him, 3. Both the appellants were tried by the learned Additional Sessions Judge. Amir PW supported his case in his statement on oath before the Court. He stated thai the two appellants were living at Hamayon de- Jhallar Dakhli Noshera and committing Zina with each other. He denied having divorced Mst. Allah Jowye or being engaged to her younger sister. 4. Gliulam P.W. 2, real uncle of the compl'ainant and Shera appellant, made a statement about the marriage of Mst. Allah Jowye with the com­ plainant. He also stated that the developed illicit relation with Shera accused and about two years ago at about Asarwela the latter accused took her away from the house of Amir in his absence. In the beginning they lived separately at different places but after they were granted bail they had been living as man and wife. He also asserted that Amir never divorc­ ed Mst. Allah Jowye. In answer to a cross-examination question he also stated that "it is incorrect to suggest that Amir had divorced Mst. Jowye and that after the said divorce Shcra accused had got married to her". 5. After recording the evidence of these two witnesses Che learned Additional Sessions Judge examined both the appellants under section 342, Cr. P.C. The marriage of Msi. Allah Jowye with the complainant was admitted by them but they asserted that they had married about two years ago after Amir complainant divorced Msi. Jowye. 6. Although in view of the above admission it was not necessary to roduce Muhammad Ismail who is only a Nikah Registrar, in support of the registration of Nikah, between the complaisant and Mst. Jowye,,, Muhammad Ismail was examined for that purpose alone. However he made certain concessions in cross-examination in favour of the appellants. He stated that Amir had divorced Mst. Jowye by a written divorce deed which was reduced to writing about a year ago. He also volunteered that this divorce deed Exh. A. D. was written after the registration of the case. 7. It is significant that the divorce deed which has been placed on record Exh, D. A. is dated 15-12-1980 and purports to have been executed after about nine months of the registration of the case, but it was not put to Amir P.W. 1 in cross-examination though he was examined in Court on the 19th of January, 1982. 8. P.W. 4 Dr. Muhammad Bashir Ameen appeared to prove the potency of Shera and bis fitness to perform sexual inte rcourse. Gbazanfar Hayat. Inspector, C. I. A. P.W. 6 was Investigating Officer He denied that Shera or Mst. Affan /owye ever produced any Tafaqnama before turn which could tend to prove the divorce of Msi. Jowye by Amir. He also stated that the appellants did not plead before him that they were living as man and wife and that they were lawfully wedded, 9. In his statement under section 342, Criminal Procedure Code Shera appellant attributed his false involvement in this case to the property inherited by Allah Jowye from Allah Yar her father which was in his possession. He also stated that Amir had divorced Mst. Allah Jowye about two years ago and he had married her after the said divorce. He further stated that they never had sexual intercourse unless they were law­ fully married. Ms!. Jowye made a statement about her marriage with Shera and divorce by Amir and attributed her involvement in the case to enmity. 10. The appellants produced in their defence Nura, D.W. 1 and Shera D.W, 2. Nura is the real brother of Amir as well as Shera appellant, He stated that Amir divorced Mst. Jowye about two years ago and then she married Shera appellant. He further stated that Amir had in the first instance orally divorced Mst. Jowye. He however executed a Talaqnama about a year ago. However he did not prove the Talaqnama Exh. D. A. 11. Shera D W. 2 made a statement about the initial oral divorce and then the marriage of both the appellants by an oral Nlkah and proved the Talaqnama Exh. D.A. He denied that the Talaq Exh. D. A. was a forged document. 12. It is interesting to note that although according to the appellants the Talaq had been effected about two years ago and according to D.W. 1 initially it was on oral Talaq but subsequently long after the registration of the criminal case it was reduced in writing, yet Exh. D.A. does not make any reference to any oral Talaq. It merely shows as if Amir had pro­ nounced three divorces on the day when this document is said to have been executed and he further added that from that dav onward he would not be responsible to pay maintenance or provide clothes to M.tt. Jowye and she had his permission to marry any where. This document even if it is assumed to have been executed by Amir falsifies, the stand about the divorce having been given about two years ago. The result is that even if the divorce deed be taken to be effective for the severance of relation­ ship of husband and wife between the complainant and Mst. Jowye, it is sufficient to prove alongwith the statements of the appellants that at least up to 15 of December, 1980 the appellants had been committing Zina with one another. 13. The learned counsel tried to argue that despite the statement of the appellants that they had been living as man and wife/there should be evidence of penetration. This argument is wiibout force. The case of he complainant is that they had been living an adulterous life. The defence is that they married after divorce by Amir and did not commit sexual intercourse till after marriage. This is sufficient admission of the commission of sexual intercourse by the appellant. I 14. The circumstances of this case, however, prove that the story of Jdivorce is absolutely false and even the document Exh. D. A. cannot be Jrelied upon since it was not put to Amir in cross-examination in order tr •contradict him within the meaning of section 145, Evidence Act. I 5. Assuming that some type of divorce had been pronounced by Amir whether oral or in writing, it is not the case of the appellants that the complainant sent any notice of that divorce to the Chairman, Union Council or Union Committee as the case may be as required by section 7 of the Family Laws Ordinance. Non-compliance with section 7 makes a divorce ineffective. It has been held in a number of cases that the relation­ ship of the husband and wife in spite of divorce does not cease to exist in case of non-compliance with the provisions of section 7. In fact in the case of Alt Nawaz Gardezl v. Muhammad Yousuf (PLD 1963 SCSI) at p. 88) ii was held by the Supreme Court of Pakistan that if divorce is pronounced, the absence of notice to the Chairman, Union Council or Union Committee would amount to retraction of that divorce. The alleged divorce is ineffective-and does not put an end to the relationship between Amir and Mst. Jowye. They are even now husband and wife. There can be no doubt that by living apparently as husband and wife and by having sexual intercourse with one another in that capacity the appellants are committing Zina with one another and both of them have been rightly convicted. 16. I have also considered whether any benefit of doubt can be given to the appellants on the basis of any assumption about lack of knowledge about the provision of section 7 but I find that there is no such circum­ stance in the present case. No such point has been raised in the groundof appeal. I therefore bold that the conviction of the appellants under section 10 (2) is unexceptionable. The sentence is not excessive. The appeal to this extent is dismissed. 17. However the case under section 16 is not made out from the evi­ dence either of P.W. 1 or P.W. 2. There is no evidence as to how the partiel had agreed to accompany one another and whether the offer came from Shera appellant, There is no circumstance from which the possibility of this case being of lopement may be excluded. The conviction and sentence of Shera under section 16 are set aside. The appeal of Shera is allowed to this extent only. Mst. Jowye is on bail. She may be taken in custody. 18. The sentence of stripes shall be carried out in a public place in the city where the appellants are imprisoned. <TQM) Appeal partly allowed.

PLJ 1983 FSC 99 PLJ 1983 FSC 99 (Appellate Jurisdiction Present ftab hussain, C.J. & malik ghulam Au, J ZAFAR ALI—Appellant versus THE STATE—Respondent Cr. App. No. 31/L of 192. decided on 20-7-1982. <i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

-Ss. II & 10(2) & Pakistan Penal Code (XLV of I860)—S. 361—Kid­ napping from lawful guardinaship—Consent of minor—Relevancy of— Zina —Commission of—Appellant kidnapping minor daughter of his previous master from his lawful guardianship and committing ztna with her—Victim consenting party to kidnapping as welJ as to commission of offence of adteruly with her—Statement of victim regarding any threat having been given to her or she having been taken away from her village on point of knife not inspiring confidence but other part of statement about her kid­ napping and about commissionjof offence of zlna corroborated by evidence of strong type including medical evidence as well as fact of her pregnancy of few months—Statements of all witnesses also consist&nt and free of any contradiction and leaving no doubt on material facts of case— Held : Caseof kidnapping as well as xina proved »o hilt. fP. 101 }A&B (H) Pakistan Penal Code (XLV of 1860}-

S. 361—Kidnapping from custody of guardian—Consent ofminof Relevancy of— Held: Taking away of minor girl of less than 16ycai» from keeping of lawful guardianship of such minor without consent of luch guardian to amount to kidnapping notwithstanding consent of minor to commission of offence. [P. 102 ] C Mian Ghulam Rasool, Advocate for Appellant. Mr. Najamuzzaman, Advocate for Respondent. Date of hearing : 20-7-1982. judgment Aftab Hnssain, C. J.—Zafar Ali was convicted by the learned Additio­ nal Sessions Judge, IVfianwali on the 6th of March, 1982 for offences under sections 11 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was sentenced under section II of life imprisonment and 30 stripes and for the offence under section 10 (2) to 10 years' R.I. and 30 stripes. It was directed that the sentences of "rigorous imprisonment shall run concurrently. 2 Hence this appeal. 3. The occurrence is said to be dated 24th/25th of October, 1981. According to the First Information Report lodged by Muhammad Nawaz, father of Mst. Surayya Bibi, P.W. 6. Muhammad Zafar appellant was employed with him as a servant. He had developed illicit connection with his daughter Mst. Surrayya Bibi on which account the complainant dismissed him on the 20th of October, 1981. When he woke up in the morning of 25th October, 1981 he found Mst. Surayya missing. He searched her with the assistance of Khaliq Dad (not produced) and uhammad Ha/at P.W. 4 his tenants. During this earch be was informed by Muhammad Afzal Khan (not produced) and Muhammad Mumtaz, P. W. 5 that they had seen Zafar and Ms.t. Surrayya boarding a bus early in the morning before sunrise. He searched for her but finding no clue he was compelled to give the First Information Report. Mst. Surrayya had taken away with her, her ear-rings weighing 1 i tolas and 14 pair of clothes. 4. The police arranged raid at the house of Muhammnd Zafar in Chak Annuana, district Faisalabad, Tehsil and Police Station Tandlianwala and recovered her from the house of the appellant on the 17th of November, 1981. Simultaneously he also arrested the appellant. 5. msi. Surraya was medically examined on the 18th of November. 1981 by lady doctor Arjamand Bano, P. W. I who did not find any marks of violence on her body. She was of the opinion that Mst. Surrayya was pregnant probably for 2/3 months at the time of examination. She took two vaginal swabs which were sent to the Chemical Examiner in order to determine her age. She advised X-ray examination. She again examined her for pregnancy in the Court and was of the opinion that now the pregnancy was of 5/6 months duration. In cross-examination she stated that the age of Mst. Surrava was probably 15/16 years tentatively. 6. The "appellant was medically examined for potency by Dr. S.M. RaSullah whose report in this connection is positive. According to him he was about 25 years of age. 7. The age of the girl was proved by her birth certificate Ex. P.C. which was proved by Fazal-ul-Rehman, Sanitory Inspector, Town Com­ mittee, Isa Khel. According to this record her date of birth was 26-7-1967 which means that she was about 14} years old on the date of alleged kidnapping. 8. Muhammad Hayat, P. W. 4 appeared to prove that he was taken by Muhammad Nawaz, complainant with him to search his daughter and Mumtaz and Afzal informed him in bis presence that Inayat and Zafar accused and Mst. Surraya and caught a bus for Darya Khan. He explained in cross-examination that in this lot in which the house of the complainant was situated there were only two other houses Le. one occupied by him and the other occupied by another man. Adda Barkat Wala from where Mst. Surrayya and the appellant had boarded the bus is about one mile from the house of the complainant. 9. Muhammad Mumtaz, P.W. 5 stated that he had seen Mst. Surrayya on the morning of 25th of October, 1981 boarding the Bus with Zafar and fnayat of Darya Khan. The third house in that lot according to him was under his occupation. He was asked why he did not stop Mst. Surrayya. He replied that he did not suspect any foulpay as Mst. Surayya was a minor and Zafar was their trusted servant. For this reason no enquiry was made where they were going. 10. Allah Dad. P.W. 7 the real uncle of Mst. Surrayya was the Witness of recovery from the village of the appellant and from his bouse. He stated that Muhammad Nawaz had lost his mental balance on account of the pregnancy of Mst. Surrayya and he had left the house and was no longer available. He supported the factum of recovery by Manzoor Ahmad. H. C, P. W. 9 who had arranged the raid and had investigated the case. 11. Mst. Surayya gave an account of her kidnapping by the appellant and of his subjecting her to sexual intercourse. She stated that during his employment the appellant developed illicit connection with her and when tier father ceme to know about it he turned him out from the house as well as the employment only about 6/7 days before the occurrence. She stated that on the day of occurrence she was returning in the early morning after casing herself when the accused reached her and abducted her on the point of a knife and under threat as well as premises for ornaments and good clothes. 12. One relevant aspect in this case is that the statements of all the witnesses are consistent free of any contradictions and they leave no doubt in our mind on the material aspects of the case. The age of Mst. Surayva is conclusively proved ty the evidence of P. W. 3 and the document Ex. P.C. she was therefore, le^s than 16 years of age on the date of occurrence. There is no reason to doubt the testimony of Murntaz who had seen her in the company of the appellant early in the morning of ihe 25ih of October, 1981 and had found them boarding a bus for Darya Khan. His explana­ tion as to why he did not interfere is reasonable since the appellant was in the service of .Muhammad Nawaz, rather he was his trusted servant and Mst. Surayya was only a minor. It is true that no witness of recovery from the village of the appellant has been produced but there is no reason to doubt the evidence of Allah Dad, P. W. 7 and Manzoor Ahmad, Investigating Officer, P. W. 9 in this respect. 13. We -agree with the findings of the Sessions Juilge (hat Mst. Surayya was a consenting party to her kidnapping as well as 'o the commis­ sion of the offence of adultery with her. Her statement to thr effect thai any threat was given to her or she was taken away from her own village on the point of knife is not believable. But the other pans of her statement about her kidnapping and about the commission of offence of zina are corrobor­ ated with evidence of strong type. Kidnapping is corroborated by the evidence of Mumtaz, Allah Dad and Manzoor Ahmad who respectively had seen her boarding the bu> or being recovered from the possession of the appellant. Her evidence about the offence of ztaa finds corroboration from the medical evidence as well as her pregnancy of a few months duration at the time of her first examination and developed pregnancy at the lime of her second examination in Court. No doubt-is therefore, left in our mind, that the case of kidnapping and zina is provsd to the hit. The learned ounsel however, argued that even if all the facts of, the case .are admitted to be correct, the offence would fall almost under section 16 of the Ordi­ nance in view of the adulthood and consent of Mst. Suryya Bibi. The question has been dealt with correctly by the learned Sessions Jud>>e. Section II deals with kidnapping or abduction by force or fraud of a woman with intention to compel her to marry against her will, or to force or seduce her to illicit intercourse or knowing it to be likely that she wi! be forced or seduced to illicit intercourse. 14. The actual kidnapping and sexual intercourse has been proved

record and we have already dealt with the point that she was seduced and aken away from her village to the village of the appellant is also estab­ lished. Section 16 deals with taking or enticing away any woman with intent that she may have illicit intercourse with any person. The sentence under section 11 is life imprisonment which can neither be reduced nor enhanced. Sentence under section 16 is much lighter and may be extended to 7 years' imprisonment of either description. The question is whether the case would fall under section 16 which deals with the abduction of a person with the latrer's consent or under section 11 which inier alia deals with the abduction by force or fraud. 15. We agree with the findings of the learned Additional Sessions Judge that this cannot be called to be a case of abduction of either cate­ gory ; it rather falls under the head "kidnapping". The Ordinance has defined adult, hadd, marriage, mohsan and Taazlr. In section 2 at the end it is written "and all other terms and expressions not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code or the Criminal Procedure Code, 1898." In order to find out the significance and meaning of the term kidnapping we have to the provisions of sec­ tions 359 and 361 of the Pakistan Penal Code. Section 359 provides that kidnapping is of two kinds i.e. kidnapping from Pakistan and kidnap­ ping from lawful guardianship. Section 361 deals with kidnapping from lawful guardianship and the definition is as follows : "Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of un­ sound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, it said to kidnap such minor or person from lawful guardianship. Explanation. —The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception. —This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be. entitled tothe lawful custody of such child, unless such act is committed for an immoral or unlawful purpose." 16. It would therefore, be evident that taking away of a minor girl Jaged less than 16 years from the keeping of lawful guardianship of such Iminor without the consent of such guardian amounts to kidnapping not- (withstanding the consent of the minor to the commission of offence. 17. The offence would therefore be an offence under section 11 since it is kidnapping from the lawful guardianship of a minor girl of less than 16 years of age, the minimum as well as maximum sentence for which is life imprisonment, whipping not exceeding 30 stripes and fine also.. In the present case the learned Sessions Judge has sentenced him for life imprison­ ment, 30 stripes and Rs. 1,000 as fine which in the circumstances of the case is proper. The sentence under section 10(2) awarded to the appellant is the maximum sentence. The sentence can be reduced and we reduce it to a period of seven years and maintain the sentence of 30 stripes. Both the sentences of imprisonment shall run concurrently. The appeal is dis­ missed with this modification. (TQM) Order accordingly.

PL J 1983 FSC 103 PL J 1983 FSC 103 (Appellate Jurisdiction) Present aftab hussain, C. J. & malik ghulam Au. J MUHAMMAD ASLAM—Appellant veesus THE STATE-Respondent Afst. IRSHAD B1BI—Appellant ver jms THE STATE—Respondent & NOOR MUHAMMAD—Appellant versus IRSHAD BIBI Etc.—Respondents Criminal Appeals No. 35/L, 36/L and 94/1 of 1982, decided on 14-11-1982. (i) Offence of Zlna (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10— Zina —Offence of—Proof of—Circumstantial evidence—Appraisal of—Witnesses making contradictory statements and their evidence regarding simultaneous arrest by police of two appellants not believable— Held: There being no eye-witness to prove charge against either of appellants and circumstantial evidence of their simultaneous arrest having failed, appellants to be entitled to acquittal—Held further : Story of simultaneous arrest having been cooked up by police, possibility of opportunity to co-habit with appellant^ (in second appeal) having been provided to her husband (being indifferent to her) before her being sent for medical examination not to be ruled out and mere fact of medical examination disclosing vagina! swabs being stained with semen not to prove case of adultery. [Pp. 105 & l66j A, B, C, D & E <ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10— Zina —Offence of—Proof of commission of—Commission of ztno to be difficult to be proved where both male and female even though remaining together be accused— Held : No evidence as to both accused living as wife and husband having been produced, such presumption not to be raised against them and both to be acquitted for want of evidence. [P. 106 ] 0 <iii) First Information Report—

Recording of— Delay in— Held : First Information Report not to be unreasonably delayed and every delay to be explained on record—Held further : Investigation not to precede FIR and quality of or defect io investigation not to make or mar criminal case. [P. 106 ] F Mehr Ghulatn All Mubashar , Advocate for Appellants. Mian Manzir Bashir, Advocate for Respondents. Dale of hearing: 14-11-1982. judgment Aftab Hiissain, C.J.—Muhammad Aslam and Mst. frshad Bibi who alongwiih four others were arrested on charge under section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 were sentenced under section 10 of the Ordinance by Mian Muhammad tJawaz Naiko Kara, Additional Sessions Judge, Sargodha on the 11 ih of May, 1982. Muhammad Aslam was sentenced to 10 years rigorous imprisonment and 30 lashes while Afst. Irshad Begum was sentenced :o 5 years rigorous imprisonment. The four co-accused namely Bati father of Muhammad Aslam, Ahmad his brother, Msi. Naziran wife of Ahmad and Mst. Rasoolan mother-in-law of Ahmad were acquitted. 2. Two separate appeals Criminal Appeal No. 35/L of 1982 and 36/L of 1982 were filed respectively by Muhammad Aslam and Afst. Irshad Begum against their conviction and sentences. Noor Muhammad father of Mst. Irshad Begum filed a Criminal Appeal No. 94/T of 1982 for the enhancement of sentence which was admitted to a regular hearing on the 14th of September, 1982 only to consider the question of awarding sentence of whipping and fine to Afst. Irshad Begum. 3. This morning Mehar Gbulatn AH Mubashar, learned Advocate for Muhammad Aslam drew our attention to a compromise between the con­ victs and the complainant. However, in view of the order of the admission we were not impressed by this submission since we could pass Revisional Order in exercise of our suo-moto revisional jurisdiction. We have therefore gone through the whole record with the assistance of the learned counsel for Muhammad Aslam appellant. 4. The date of occurrence in this case is said to be 17-12-1980 while the First Information Report was recorded at the instance of Noor Muhammad P. W. 3, father of Mst. Irshad Bibi appellant on the 21st of December, 1981 at 11-45 p.m. in police station Bhalwa! four miles from Daiwal where the occurrence of abduction of Mst. Irshad Bibi is said to have taken place. 5. According to the prosecution, after the death of the wife of Noor Muhammad and mother of Mst. Irshad Begum, Mst. Rasoolan (the acquitted accused) looked after the house hold of Noor Muhammad, P. W. 3 and also brought up his children including Mst. Irshad Begum. As already stated, Ahmad, the acquitted accused (brother of Muhammad Aslam, appellant) is the son-in-law of Mst. Rasoolan. It is alleged that the Appellant Muhammad Aslam and his other co-accused used to come to the house of Noor Muhammad. They abducted Mst. Irshad Begum on the 17th of December, 1980 in the absence of Noor Muhammad. One of the witness namely, Muhammad Yaqoolj P. W. 6, sister's son of Noor Mohammad informed that he had seen all the accused persons going alongwith Mst. Irshad Begum appellant. Thereafter, the complainant is said to have made an attempt for the restoration of Mst. Irshad Begum and having failed In this attempt he ultimately lodged the First Information Report. 6. Both the convicts are said to have been arrested on the 14th of January, 1981 from Ada Salam. They were medically examined. Dr. Muhammad.Ramm Paracha, P. W. 9, examined Muhammad-Aslam and found him potert Lady Dr. Jamila Lodhi, P.W. 4, examined Mst. Irshad Begum at about.! 2.45 p.m. the same day and found her to be accustomed o sexual intercourse. She took her vaginal swabs which she gave to the Police Muhammad Akram Assistant Sub Inspector, P.W. 8, gave the ^parcel of the swabs to Zulfiqar Ah, Head Constable, P. W. 2, the same day who later on handed the same over to Muhammad Anwar, P, W. 1. on the 17th of January, 1981 and the later handed the same over to the office of the Chemical Examiner on the !8ih of January 1981. 7. The report of the Chemical Examiner Ex. PG is positive and show that the swabs were stained with semen. 8. It is unnecessary to refer in detail to the statement of the witnesse in this case, since Noor Muhammad P.W. 3, is not an eye witness while Muhammad Yaqoob is only Wajiakkar witness and his evidence as such is no longer relevant 'in view of the acquittal of ihe appellant on a charge •ndei section 16. P. W. 5, Dost Muhammad brother of Noor Muhammad is a witness of his visit and that of the complainant to the house of Ahmad acquitted accused,'where it is said that Ahmad admitted having brought Mst. Irshad Begum but stated that both the convicts had gone somewhere. This evidence is not relevant against the two convicts. Its relevancy could only be canvassed against Ahmad but he has been acquitted. 9. The important evidence is of P. W. 7, Sahoor Ahmad brother of Mst. Irshad Begum and Muhammad Akram, Assistant Sub Inspector, P. W. S, since both of them stated '.hat the Jtwo convicts appellants were arrested from Adda Salam simultaneously. 10. It is clear from these facts that there is no eye witness to provej <he charge under section 10 against either or the two appellants. There isL only circumstantial evidence of their simultaneous arrest and of the swabs| being found to be stained with semen. 11. We agree with the learned counsel for Muhammad Aslam appel­ lant that the evidence of arrest is not believable. P.W. 3, Noor Muhammad admitted in his cross-examination that Mst. Irshad Begum had remained ith the Police for 2 or 3 days. Muhammd Yaqoob, P.W. 6 said that she might have remained with the Police for one or two days but it is strange that according to the record, arrest was made on the I4th of January, 1981. B and the medical examination was held on the same day and both the appellants were sent to the judicial lock up the same day which means that the two appellants had not remained in the custody of the police even for 24 hours which is the statutory period during which the Police had a fight to keep them. The evidence of P. W. 3 and P. W. 6 goes to esta­ blish that the story of arrest on the i 4th of January, 19bl is not correct and in this respect the statements of P. W, 7 and P .W. 8 both are false. 12. The evidence of the two witnesses is also self contradictoryj P. W. 7 stated that the arrest took place at 9.30 am. on the 14th of[C January while according to P.W. 7, the time of arrest was 4.30 p.m. Howe-l ver, it is worth mentioning that according to the medical report, Ex. PB. Mst Irshad Begum was produced before the Lady Doctor at !2 Noon and was examined at 12.45 p.m. This further proves the inaccuracy of this portion of :he prosecution case. 13 The circumstantial evidence failed, he is entitled to acquittal. against Muhammad Aslam havingj o 14. It is no doubt true that Mst. Irshad Begum had not been with] her husband f r almost a month before she wa-. arrested oy the Police. InE these cirvumuauces, the i'ajt thai her medical examination disclosed thatj the vagina! sawabs were stained with semen could go a long way to prove a case of adultery against her but in the present case it is established on ri-cord that though, as stated by P. W. 3, Nazar Muhammad husband of Mst. Irshad Begum did not come to his father-in-law's house for a whole month during which Mst. Irshad Begum had, before her abduction, been living with her father but such an indifferent man was present at the Police Station. It is evident from thestatement of Muhammad Yaqoob P. W. 6, that he was there. In these circumstances, the possibiliiy cannot be ruled out that just as the story of simultaneous arrest was cooked up by the police, they might have given an opportunity to the hsuband to co-habit with Mst. Irshad Begum before she was sent up for Medical Examination, This could sufficiently explain the presence of semen in her. In ibis view of the matter, no case is proved against her also. 15. The appeal is therefore allowed, the convictidn and sentence of the two appellants is set-aside and they are acquitted. They shall be released forihwhh if not required in any other case. The appeal of Noor Muhammad fails and is hereby dismissed. 16. Bsfore parting with this case we may observe that this is not a solitary case of its kind. It is undesirable that the quality of or defect in investigation can make or mar a criminal case. It is of utmost importance that the First Information Report should not be unreasonably delayed end every delay should be explained on the record. There is, however, a category of cases in which there is convincing evidence that the complainant party reached the Police Station or contacted the Police Officer without any delay and yet the Firsl Information Report was recorded much later after investigation. In such cases the reports seldom reflect the first infor­ mation actually given but is nearly always in line with the requirements of investigation as understood by the Police Officer concerned. Instead of the First Information Report preceding the Investigation, the investigation precedes the First Information Report and we can easily realise the implica­ tion that the later edifice is contracted not on what is reported but on what may bi.suspected to be a concoction. Such cases are not rare. 17. The investigation is more often most unsatisfactory. In a case of Zlna or rape sometimes the entire family is roped in as an accused person : without realising that this mixture of untruth with truth may render the truth also doubtful. Sometimes proof of Nikah is furnished which nega­ tives the charge of Zina. And yet the husband and wife have to run the risk of criminal prosecution. More often than not the girl is first arrested and then with the 'collaboration Jof Jthe members of her family, she is pressurised to deny the Nikah in order to involve the male. 18. There are cases in which the prosecutrix was not madically exa­ mined (ill quite late. Thus the corroborative evidence is completely ignored. It is a matter of general observation that in cases where the abdBctee is taken to different places no attempt is made by the Police Officer t pinpiont the locality here she was taken and to collect evidence from there. 20. Similarly the neighbours for the locality where the offence is mated are rarely examined. It is very difficult 10 prove a case of ing away und-T section(6, OiTcnce of Zina (Enforcement of Badood) rdinance, 1979. If both the male and the Iemde are accused, it becomes difficult to prove commission of Zina even though they mey be living together. No evidence is produced to show whether they had been living as man and wife. Since no such presumption can be raised against them, they have to be acquitted for want of evidence. 21. No memo of arrest is even prepared and ii sometimes becomes impossible to check the dates and circumstances of arrest without going through the police record. 22. Where the offence of Zina is said to have been committed in » field, no note is even made in the site plan abouT the observations whether the grass was trampled, how high was the crop end whether the offence could be seen by the witness. Sometimes even (hat place is not located from where the witnesses had seen the occurrence. 23. And the strange part of it is that though high police officers confirm the the investigation before.submission of chaJlan in Court, they do not notice these glaring omissions, irregularities or commissions. 24. We would like to place it on record that in case of Hodood with which this "Court is concerned, we would like the police investigation to be efficient, honest and above board so that the offenders may not escape punishment. The above are only some of the patent irregularities and illegalities which have been specified here by way of illustration. The result is that in many a case in which the efficient and honest investigation would " have helped to tighten the noose round the neck of the offender, the latter has to be given the benefit of doubt and has to be acquitted. This frus­ trates the object of the Hadood Laws which aim at reducing the impact of criminal tendencies in the society 25. Copies of this judgment may be sent to the Secretaries Law Departments in the Fedefa! Government as well as the Provincial Governments. Secretary of the Ministry of Interior, Government of Pakistan and Home Secretaries of all the Provinces and all the Inspectors Genera! of Police in the country. It is time that prompt action in this respect is taken otherwise we are afraid that the implementa- » tion of Hadood Laws which had already suffered much for the above reasons may be an exercise in futility. • (TQM) Appeals allowed.

P L J FSC 107 P L J FSC 107 (Appellate Jurisdiction) Present : zahooral haq & pir muhammad karam shah, members PAK MUHAMMAD and 2 Others—Appellants versus THE STATE—Respondent Criminal Appeal No. 106/1 of 1981, decided on 1-11-1981 (I) Criminal Trial—

Witness—Suggestion to—Accused—Statement by—Allegation regarding witness—Effect of-—Witnes not suggested or cross-ex mined regarding any attempt of illegitimate intimacy and such allega' a made by appellant only in her statement under Section 342, Cr.P.C Y«W : Witness having not been allowed any opportunity to explain position by putting away such suggestion, allegation to be of jbo consequence. [P. 112] A (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S?. 10(2) & 18— Zina— Attempt to—Offence of—Appellants locking themselves in room and door when opened by PWs., both (appellants) found naked— Held: Appellants certainly having gone beyond stage of preparation and only thing left being commission of zina itself, and they having not stopped from attempting to commit zina on their own part but due to outside intervention, conviction to be justified. [Pp. 113 & 114] B PLD 1950 Lab. 147 : PLD 1952 Sind 28 ; PLD 1970 Lab. 2^0 & 1973 SCMRJOSr/. (lii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 19(1) read with Pakistan Penal Code (XLV of I860)—S. 109— Zina —Attempt to—Offence of—Abetment of—Appellant not attributed any role in FIR except that attempt to commit zina made in his bouse— Appellate while selling vegitables remaning present outside room and in all probability in knowledge of intention of other accused—field : Improvements to earlier version having been made in siafemems of witnesses, case against appellant not proved beyond doubt. [PT^I-Hr^ (r?)Zina—

Attempt to— Held: Young men and women if undress themselves and woman lies naked on cot while man stands naked, they having gone siage of preparation but for outside intervention would have performed act of zina [P. 114] C. Khan Mushtaq Ahmad Khan, Advocate for Appellants. Hafiz S. A. Rehman, Advocate for Respondent. Date of hearing : 5-9-1981. judgment Zahooml Haq, Member.—This is an appeal from the judgment of Additional Sessions Judge, Muzaffargarh dated 22-7-1981 whereby the present two appellants Pak Muhammad and Mst. Sakina were convicted under Section 10(2) read with Section 18 of Ordinance 7 of 1979 and were sentenced to three years R.I. and five stripes each. The third appellant in this .appeal namely Allah Banda was convicted under Section 19/1 of Ordinance 7 of the 1979 read with Section 109 of P.P.C. and was sentenced to pay Rs. 2.000/-fine or in default to suffer 18 months rigorous im­ prisonment. 2. The relevant facts of the case as related in the FIR lodged by P.W. Chiragh Din at Police Station, Alipur on 18-2-1980 at 11-00 A.M. are to the following effect :- "I live inside Fatehpur Gate of village Alipur. Today, when I came out of my house, I saw (hat a woman and a roan are entering in the house of Allah Banda s/o Allah Dya, in suspicious circumstances. I took Nayyar Imam and Muhammad Afzal, my neighbours alongwith me and went to the shop of Allah Banda and saw that the door of the house is closed; which was pushed and we found Mst. Sakina w/o Amir Bakhsb lying naked on a cot and Pak Muhammad standing naked. Mst. Sakina immediately put her Shalwar on and Pak Muhammad after earing his Shalwar, fell down on my tcet and bepged for mercy and said ihat he has committed a mistake. Therefore, we have brought Pak Muhammad and Allah Banda a) whose instance they were going to commit the offence. Action against them be taken." 3. The investigation of the case was conducted by P.W. 5 Ghularo Sabir Head Constable of the same Police Station who had examined PW. 3 Nayyar Imam and P.W.4 Muhammad Afzal had also arrested (he accusedappellants on the same day He sent Mst. Sakina for the examination to Lady Doctor but the same is of no consequences as there was no allegation of actual zlna. He also got appellant Pak Muhammad examined by P.W.6, Muhammad Ramzan Shah, the Medical Officer who reported that Pak Muhammad was fit for sexual intercourse. 4. The prosecution in support of its case had examined three eye witnesses. Chiragh Muhammad P.W.2 who is the complainant in the case who had reiterated the contents of the F.I.R. in his deposition and stated that he saw appellants Pak Muhammad and Mst. Sakina going into a room of the house of Allah Banda appellant in suspicious circumstances. There­ upon he called Nayyar Imam and Muhammad Afzal, hrs neighbours, and they had gone together and opened the door of the room of Allah Bunda where they found Mst. Sakina and Pak Muhammad.naked and thereafter they reported the matter to the Police at 11.00.A.M. The incident was alleged to be of 9-30 A.M. on the same date; Chirag Muhammad was cross examined at length by the Defence but nothing of substance has come out of that cross examination. He stated that he had seen accused stand­ ing naked. He denied any knowldge about the brother of accused Pak Muharomid having been murdered somewhere in Tehsil Sadiqabad and further denied that he wanted to force the accused to compromise in that murder case. He also denied that he had developed some grudge against accused on account of vegetable article dealings. In cross examination by 1431. Sakina he denied that Mst. Sakina was cutting grass in bis land and he checked her from cutting the grass or that Mst. Sakina had abused him. He also denied that Mst. Sakina was at the shop of Allah Banda for purchasing the vegitables and that he pushed her into the room and confin­ ed her ihcre where appellant Pak Muhammnd was already in the room. He denied that he had implicated Mst. Sakina because she had abused her. 5. Next prosecution witness P.W. 3 Nayyar Imam has supported the complainant Chiragh and stated that Chiragh had called him saying that a man and a woman have gone into the house of Allah Banda in suspicious condition. They called Muhammad Afzal, P.W. and went to Allah Banda asking him as to who were inside the room. Allah Banda answered in the nagative but then admitted that the said two accused were in the room for the purpose of illicit intercourse. They then pushed the door open and went into the room where they saw accused Mst. Sakina lying naked and accused Pak Muhammad standing in naked position and on seeing them they caught them and took them to the Police Station It is surprising to see that Nayyar Imam was not cross examined by Pak Muhammad or Allah Banda and the cross examination by Mst. Sakina was only to the extent that Nayyar Imam was landlord which he denied. 6. P.W.4 Muhammad Afzal gave almost identified! evidence as that of P.W. 3 Nayyar Imam had fully supported that version of Nayyar Imam. In cross examination he denied that Pak Muhammad was standing in the treet when he saw him. He denied any knowledee about the murder of the brother of Pak Muhammad and denied that in order to reach a com­ promise in the murder case they had implicated the accused in ibis false case. In cross examination by Allah Banda he denied to have a smoked cigarettes standing on the shop of Allah Banda. In cross examination to Atsl. Sakina he denied the suggestion that Mst. Sakina was at the shop of Allah Banda for purchasing vegitables. He also denied that he and Chiragh Muhammad pushed the appellant into the room or that he gave a •lap on the head of Mst. Sakina. He denied the knowledge of the fact that Mst. Sakina was cutting grass from the land of Cbiragh Muhammad who checked her from doing so. He admitted that Mst. Sakrna belongs to Bagar Shah which was three miles away from Alipur. In cross examination 'to court he stated that house of Chiragh was 3/4 karams from his house and they belonged to the same brotherhood and land of Chiragb Muhammad is in Mauza Baqar Shah. He also stated that hundred of peoples had gather­ ed when they were taking accused person to the Police Station. 7. The appellants in their statement under Section 342 Cr.P.C. bad denied the.case of the prosecution. Pak Muhammad had stated that he was 400 yards from the shop of Allah Banda when Cbiragh Muhammad took them from there to ihe Police Station. He also stated that bis brother was murdered in Tehsi) Sadiqabad and the complainant party used to force him to have compromise in that murder case and on his refusal be had been falsely implicated in the case. The appellant Allah Banda stated that he was not taken alongwith others two accused but after some time he was taken to the Police Station. He also stated that Chiragb Muhammad had asked himto make the exchange of rrs house property with that of Chiragh Muhammad and on his refusal this case was filed. Mst. Sakina stated that she was at the shop of Allah Banda for purchasing vegi table when alongwith other,two accused she was taken from there to tht Police Station. She also alleged that complainant Cbiragh attempted to develop illicit relation with her but she refused and therefore, this false case is filed. 8. The defence examined three defence witnesses. P.W. 1 Sbaukat, stated that hd used to sell fruit near the shop of Allah Banda and that accused Pak Muhammad and Allah Banda were sitting on the shop of Allah Banda when at 9-30 A.M. one woman who is accused in Court came there with her brother and that man said to her sister to sit at the shop of Allah Banda and purchase vegetable from there as he was go to the goldsmith. There arrived P.W. Chiragh Muhammad and he started abusing all the three accused and took 'hem to thexPolice Station. The brother of Mst. Sakina on his return was informeoVpf the incidcni. On the same day Police reached at the spot and witnesses^ad told the Police about the facts. In cross examination the witness did not remember as to in which ward (hop of accused Allah Banda was located. Restated that his house was 20 karams from the shop of Allah Banda. He denied that he and accused Psk Muhammad and their family belonged to the same town in India. He denied that he bad disposed falsely. 9. D W. 2 Allah Bachaya who is the brother of Mst. Safcjna stated that he and his sister had gone to Aiipur where he directed ber to purchase vegetable f torn the shop of Allah Banda and wait for his return as be was going to the g ldsmith. On his return from goldsmith a Rehri Owner told few that his sister was taken to the Police Station while she was sitting onthe shop of Allah Baada. He stated that ihereafter be went to the Po'ice Station and stated before the Police that his sister was innocent. In cross examination he admitted that he was convicted and sentenced in a murder case but actually he was innocent. He denied that he was not with his sister on that day. He stated that the ornaments were not ready on that day and therefore, were not purchased. He stated that the ornaments were required for his wife but admitted that his wife was not alongwiib him for purchasing the ornaments. He stated that the order was already placed for the ornaments. He admitted that Dp ornaments were purchased thereafter on account of the expenses of defending the case in question. 10. D.W. 3 Mahmood Khan deposed that he knew Pak Mohammad and Chiragh Mohammad. Mushtaq, the brother of Pak Mohammad was murdered. Anwar and Aslam were accused in that murder case. They both are from brotherhood of P.W. Chiragh Mohammad. Cbiragh Mohammad had asked Pak Mohammad to have a compromise in that case but he refused. This relation of accused Pak Mohammad were not cordial since then and accused was threatened with dire consequences. In cross examination he stated that be was not a witness in the murder case of said Mushtaq. He admitted that he was from the brother hood of Musfetaq in the sense that they belong to the same Moholloh. He ako stated that he had only heard about the murder of Mushtaq who was murdered about three years ago. He admitted that he did not know Aslam and Anwar. He also admitted that Aslam and Anwar were acquitted but he did not know as to when they were acquitted. )}, Mr, Mvsbl&f Abmaii J^aj-jocd counsellor the appellants has submitted that the case is not worlb being believed. We do not agree with that submission as we find that the case of the prosecution has been amply proved by P.W. Chiragh Mohammad, Nayyar Imam Shah and Mohammad Afzal. We find that all the three eye witnesses are consistant in their statements that on opening the relevant door they had found Mst. Sakina and Pak Mohammad in naked condition. Two of them had stated that Mst. Sakina was lying and all the three of them had stated that Pak Mohammad was standing in naked condition. There is hardly any cross examination directed against Nayyar Imam and hit evidence has gone completely unrebutted. Similarly there is no cross examination worth in name against Mohammad Afzal. We also find that the evidence of Chiragh Mohammad has not been shaken in the cross examination and therefore, there is no reason to disbelieve to three P. Ws. as against Pak Mohammad and Mst. Sakina. In fact we find from the statement of Pak Mohammad under Section 342 Cr. P.C. that he ba» not denied his presence nearabout the shop of Allah Banda but stated that he was 100 yards from the shop. If it had been so and he was falsely implicated then the town of Alipur could not have allowed such a false implication to go unchallenge. The appellant Mst. Sakina has stated that the was present at the shop of Allah Banda for purchasing vegetables therefore, her presence near the scene is almost admitted. From the trend of cross examination made by Mst. Sakina to Chiragh and Mohammad Afzal we find that the suggestion was that she bad been pushed into the room with Pak Mohammad and this would therefore, amount to indirect admission of her presence at the spot. This trend of cross examination is therefore of some significance. In any case even if we leave aside the trend of the cross examination, we still find the case of the prosecution fully proved by the three P. Ws, as against Pak Mohammad and Mst. Sakina. 12. In respect of the defence witnesses suffice it to say that the story of Allah Buchaya that he had come to purchase ornamenis to Alipur from village Baqar Shah without his ~vife. for whom the ornaments had been ordered is not believable. Further it is inconceivable to believe chat Allah Bachava who resides in village Baqar Shah three miles away from Alipur would bring his sister Mst. Sakina for the purpose of pur­ chasing vegetables and would not even take her to the goldsmith in order to see whether the ornaments had been properly prepared or not. Moreover no goldsmith has been examined by the defence in order >n substantiate the story about purchase of ornaments from the goldsmiin. In fact Allah Bachaya had admitted that the ornaments had not been purchased eventually. The reason which has given that the expenses of the present case prohibited the pure ase of the ornaments is feasible alright but it is doubtfut whether the ornaments which had been pre­pared under order could be left in that condition. After all a good deal of advance payment must have been made for the ornaments at the time of the placing of the orders and the advance payment could not thus be foregone. If the defence was serious in its contention then it was incum­ bent upon it to produce the goldsmith which could substantiate the story which is otherwise not believable. 13.^D.W. Shaukat is not worth being believed as we have found that trie story of the goldsmith is not substantiated. In any case D. W. Shaukat had stated that he had told the Police on the very day about the facts on the spot but we do not find even a single suggestion to that effect having been put to the Investigating Officer, Ghulam Sabir. In fact Ohulam Sabir has clearly stated that be had examined only Nayyar Imam and Mohammad Aftal and therefore the presence of D, W. Shaukat .on the spot is hardly believable. 14. Similarly the version of D.W. 3 Mahjnood Khan about the •trained relationship of complainant party with Pale Mohammad accused is hardly of any credence particularly in view of the fact that he had merely heard of the murder , and he did not even know Aslam and Anwar who were the accused in the case of murder m and Anwar had been acquitted of the charge of murdering Mushtaq and of Mushtaq and more particularly in view of the fact that Asla witness Mahmood Khan did not even the knowledge as to when they were acquitted. In such circumstances the version of «Chiragh Mohammad having a strained relationship with Pak Mohammad is not wonh any credence. Even the relationship of Aslam and Anwar with Chiragh was not stated. We do not consider mere brotherhood as enough to force a complainant to withdraw a murder case against the member of brotherhood. 15. We also find that Afst. Sakina did not allege any attempt of illegitimate intimacy by Chiragh Mohammad when she cross examined Chiragh Mohammad but in her statement under Sectioti 342, Cr.P.C. she has made that allegation. It is ne : ss to say that such an allegation is of no consequences as she did not allow Chiragh Mohammad to explain that position by putting away such suggestion. It is thus evidence that the factum of Pak Mohammad and Mst. Sakina having been found naked in the room of Allah Banda is proved beyond doubt and it is further proved that Mst. Sakina was lying naked on the cot and Pak Mohammad was standing naked 16. Mr. Mushtaq had submit led that (he Jacts proved merely •mounted to the preparation Cor the offence of zina but they did not constitute an attempt. He had relied upon a numbe^ of rulings starting wht» PLD 1950 Lahore 147 where difference between preparation and attempt to commit an offence was elucidated by S. Mohammad Jan, 1. He also relied upon PLD 1952 Sind 28 which was a case of esseniial com­ modities and therein "preparation" and "attempt" were distinguished. The relevant portion of the same is as under :— "Person intending to do a particular offence must have done one or more criminal acts being part of the criminal transactions towards the commission of he intended offence". 17. Reference is also made to PLD 1970 Lahore 230 where attempt to commit offence was defined but it was also observed in the said ruling that what amounts to an attempt is of necessity vague. In anoiher case vtr : 1973 SCMR 108(11) Justice Sajjad Ahmad Jan has elucidated as so what amounts to an attempt as under :— "More specifically an attempt to commit a crime consists of the following elements :— (/) The intent to commit the crime ; (if) Performance of some act towards the commission of the crime, and (Hi) Failure to consummate its commission on account of she circumstances beyond the control of the offender. The test whether there has been an attempt to commit a crime, is a factual one by reference to the three ingredients set out above". With respect agree with those observations. The Supreme Court was a case of an intention to rob by a Police Conktable when he had pointed out his knife on some persons who had gathered at the kotha of a Prostnute and he had told them that they should surrender what they have but eventually nothing was robbed out of those persons as the culprits had fled away when the inmmes raised a cry, and m those circumstances the court held <hai it was not their intention to rob as if the accused hart really intended to rob they would have certainly done something practical to rob them and since there was no outside intervention and accused had fled away on their own therefore it was not an attempt at robbery. The conviction was therefore altered from 393/3<»8, P.P.C. to one under Section 506, P.P.C. It is apparent therefore that every case of attempt has to be decided on its own facts. 18. In the present case we have the evidence that the appellant! Pale Mohammad and Mst., Sakina went into the room of Allah Banda and closed the door. Thereafter we have the evidence that when the door was opened by the P. Ws. they found Pak Mohammad and Mst, Sakina both naked and further they found that Mst. Sakina was lying on the cot. In these circumstances ihere is no oiher interference possible except that the appellants Mr. Sakina and Pak Mohammad were attempt­ ing zina but they were failed in their attempt to commit zina by th< intervention of the P. Ws. who opened (he door They fiad cer'ajri'y pone beyond the stage of preparation and ihc or!y hi g !cf: wes -.he commission of ihe-offence of zina iisclf. U was a case of :ina by consent f the parties and a case of rape. The accused had not Mopped from ttempting to commit the zina on ihcir own but ihcy have been stopped in that act by outside intervention. Wr-arequiie clear in our mind ibat if a young man and young woman undressed ihertiseives and the woman £.lies naked on the co! and the man is standing naked ihen ihey have gone (beyond thcstag.c of preparaiion and are aitempting lo ccmrrtit ziwe, and {but for the wutside intervention ihey-would have performed the act A f zina. 19. We are therefore, clearly of the view that Pak Mohammad and Msl. Sakina had attempted to commit zina and their convic'ion under Section 10(2) read wiih Section 18 is justified' and therefore their appeas are dismissed. However, the case of Allah Banda appellant is different. We find thaMhe complainant, Chiragh Mohammad in bis F.J.R. has not attributed any role to Allah Banda in respect of this matter but had only stated that it was the house of Allah Banda. It is correct that Allah Bands was sitting outside lha' room selling vegetables and in all proba­ bility he might have known the intention 1 ; of the other appellants when they entered in his room but Chiragh Mohammad had not burdened Allah Banda with any direct responsibility in his F.f R. had been lodged at I i.UO a.m. while the offence had taken place at 930 a.m and therefore, til! 11.00 a.m. the specific role played by Allah Banda was not specified by Chiragh Mohammad in bis FIR because he had merely stated in the F I.R. that the offence was going to be committed at the«instance of Allah Banda but that is a mere expressian of opinion without mentioining the specific action which could be regarded as the ground of that opinion- Wc may note here that complainant Chiragb Mohammad and P. Ws, Nayyar imam and Mohammad Afzal were together when they had opened fherobra of Allah Banda and found the appellants Pak Mohammad and A/it. Sakina naked inside at 9-30 a.m. and therefore, Chiragb Mohommad should have been conversant that what happened at the time of the op ning of the relevant door. But we find that P. Ws. Nayyar Imam and Mohammad Afza! have in their statements stated that they asked Allah Bands about going into the room of a man and a woman and Allah Banda denied but later on admitted that a man and womon were in the room for Ilicit purpose. This aspect of the case appears to be an improvement and as it is not found in the F.I.R. lodged by Chiragh Mohomniad which is she earliest version of the case. Even iu the depositiou of P. W. 2 Cbiragh Mohommad we do not find any mention of a talk between the P. W. and Allah Banda and we are therefore of the view thit the case against Allah--iaadft ha< not proved beyond doubt and he is therefore, entitled to an acquittal and he is therefore, ordered to be released. These are the reasons for f&e«ral »rder passed by us on 6-9-1981. The appeals of Pak Mabammad and -Afjf. Saiiaa arc dismissed. (TQM) Order accordingly.

PLJ 1983 FSC 115 PLJ 1983 FSC 115 (Appellate Jurisdiction) Present : aptab hussain, C.J., zahoorul haq. ch. muhammad sildiq, maue ghulam Au & Pis muhammad K aram shah, JJ - GHULAM ALI—Appdlant versues THE STATE—Respondent Jail Criminal Appeal No. 30/1 of 1982 and Cr. Ref. No. 153/1 of 1981 decided on 296-1982. (i) Ofeafce •£•!• Property (Eafarceiaeist of Hadood) Ordiaaucc (VI of 1979)— - Ss. 5,7 ft 9— Theft of property of value of nisab— Offence of— Appellaat committing theft of clock fixed on wall of mosque at height of 6/7 feet by removing same by using wooden pulpit at time when devotees not expected to be in mosque— Removal of clock from wall by appellant and his being caught at spot proved beyond any shadow of doubt by evidence of independent witnesses — Appellant not attributing any motive for falsely implicating him and even not disputing (in crossexamination) value of clock proved by witnesses to be that exceeding value of nisab— Held: Building like mosque having not been excluded from definition of 'htrz' and theft of property of more value than 'nisab' having beeo com­ mitted, sentence of amputation of hand to be confirmed. [Pp. 11 8, 119 & 121] A, », D & S (ii) Offences apuast Property (Enforcement of Hadood) Ordiaaaee (VI of 1979)— S. 7— Theft— Proof of— Witnesses— Truthfulness of— — Requirement of—Trial court inquiring into truthfulness of witnesses by calling for report of police record and by affording opportunity to appel­ lant to cross-examine each of witnesses— Held: Condition of there being two independent truthful eye-witnesses for offence of theft other than victim of theft having been satisfied, appellant rightly convicted by trial Court. [P. 119JC (Ui) Offences 197?)- againat Property (Enforcement of Hadood) Ordinance (VI of

Ss. 5, 7 & 2 (d) —Mosque—Removal of clock of value of more than nisab from—Kadd —Liability of accused to punishment of— Hirz~~ Definition of—Exception to— Held: Definition of hlrz not to make any exception in favour of properties open to all persons—Held further : Mosque being built up area like house and no exclusion of same having beenfmade ffrom definition of 'hirz', removal of clock of more value than nisab from such place to make appellant liable to hadd punishment. . [Pp. 119 & 121) D, F.G&H Afoul Htdaya (Vol. 2, pp. 494 & 501); Jamiaul Jaafri (p. 524) ; Bakar-e- Shiriat (Vol. 9. p. 106) ; Tabjlnul Haqaiq (p. 221) ; Raddul Mukhiar (Vol. 3, •p. 206),: Kanzul Daqaiq (p. 192) ; Bahrur Raig (Vol. 5, p. 54) ; BMaqyatui Muitahld (Vol. 2. p. 412); Wa&dU-ul-SMa (Vol. 18, p. 509) ; Almffbsov z theft of ihe value of the 'nisab or more not being stolen property, knowing that it is or is likely to be of the value of the 'nisab or more is, said to commit theft liable to 'hadd, 19. The appellant is 25 years of age and had committed ifeeft by removing the clock from the wall where it was fixed at a height of bout 6/7 feet and in order to remove it the appeilant used the wjoodea pol (j.u). Surreptltion is proved by the fact that theft waicommitted at a time when those who came to offer their prayer were not expected to be in the mosque and Muhammad Siddiq was visibly sleeping and lM$ surrepti- {ion continued as required by explanation till the clock had already been removed from the wall and the offence had ben completed. The for theft liable to Hadd is 4'457 grams of gold value of which on the date of offence was proved by the evidence of C. W. I to bej&obt 660 rapees while the value of the clock on the said date was proved - by the evidence of C. W. 2 to be about Rs. 750 which exceeded the value of 'nfsaF. None <rf these witnesses were cross-examined and there is no reason why should make false statements. 20. According to Section 7 the theft can be proved by the evidence ol at least two Muslim adult male witnesses, other than the victim of the theft about whom the Court is satisfied, having regard to tie reqaweffients of -fazklyak-al SkakcxMT that they are truthful persons and abstain from ft a jot sins, and who give evidence as eye-witnesses of the occurrence. In order to satisfy himsdf about the requirement of 'tazklyaJkal-shahsod" the learned Sessions Judge examined P.W. I, P.W. 3 and P.W;"4 again is the presence of the appeilant who was given an opportunity to cross-examine each of them. There is no reason to disbelieve them. Thev have been proved to be truthful witnesses. The truthfulness of these witnesses was inquired into bytbe learned Sessions Judge by calling for report of the police record also. The condition that there should be two independent eye-witnesses for the offense of theft other than the victim of the theft has been satisfied in tlsis cms by the evidence of at least Muhammad Siddiq P.W. 3 and Muhammad Hassain P.W. 4. The evidence of Muhammad Ibrahim is also equally relevant since he found the appellant with the clock grappling with the other two witnesses. 21. The only question now to be determined is whether the condition of theft being committed from 'hfr' was satisfied or in other words whether the evidence is sufficient to prove the removal of the dock fro® 'Mrs. 'Hlrz' is defined in Section 2 (d) as an arrangement made for the custody of property. It is explained that property placed in a house whether the door is closed or not is said to be in 'hirz'. 22. It is clear from the record that the clock was hung on the wall at a height of about 6/7 feet and it was not possible to remove it without ascending over something which happened in the present case to be the pulpit. The mosque was a built up area like a hovse and it was not material whether its door was closed or not. There is no exclusion of any building like the mosque from its definition. There can be nodoobt that theft had been committed from 'hirz'. 23. The learned counsel for the appellant submitted that firstly the ownership of the clock was not proved and members of the committee of management of the mosque or some parsons on behalf of the committee should have been produced. He also submitted that the evidence of one witness was not sufficient to prove the value of the stolen property and there should be more than one expert witnesses in that behalf. He relied upon some juristic opinion mainly of Fiqh Hanafie and arged that

mosque by itself is not a 'hlrz' and in_any case theft from a mosque or baftulmal is not liable to be punished with Hadd on account of the property in them being common property of ihe Muslims. The learned counsel also submitted that it appears that Muhammad Siddiq, P.W. 3 had not seen the occurrence and haJ reached the spot later, 25. The first point is wiihout merit. The appellant did not claim th« clock which is proved to be the property of the mosque by the evidence of three witnesses. It was unnecessary to produce any member of the manag­ ing committee if there be any, of the mosque for this purpose. - 26. The last point may be taken at this stage. It was argued that Muhammad Siddiq, P.W. 3 had reached the spot later but the evidence of all the three witnesses bears testimony to the presence of Muhammad Siddiq and his having caught the appellant after Muhammad Hussain, P.W. 4 had surprised him. The portion of the evidence relied upon by the learned counsel in cross-examination is not sufficient jo hold that Muhammad Siddiq was not present in the mosque or he camealongwith or after Muhammad Ibrahim P.W. i. That point is also wiihout force. 27. It was urged that the evidence of one witness was not sufficient to prove the value of the stolen property and in support pf this reliance was placed upon Fatawa-l-Alamglri, Vol. 3, p. 303, Durrul Mukhtar, Vol. 2, p. 466, Islam! Qawanin, Hudood, Qlsas, Diyat aour Tazlaart by Dr. Tanzilur Rehman, p. 67. It is stated in these books that hands will not be amputated on the assessment of valuation of 'nisab' by one person but this appears to be the strict Hanafie view which has not been adopted in the Offences Against Property (Enforcement of Hudoody Ordinance VI of 1979. JTwo witnesses are necessary in this Law only for seeing the commission of EJtheft and not assessment of valuation of 'nisab'. This argument is, therefore, 'without force. 28. It was urged that mosque is not a 'hfrz' since it rs open to visitors at all times and nothing placed in the mosque, however valuable it may be the property stolen, can attract the divine injunclion of amputation of hand. In any case even if it is assumed that the mosque is a 'hirz', the appellant cannot be punished with Hadd in so far as he could not get out of the 'hirz' and is said to have been caught in the mosque. 29- For the first proposition reliance was placed upon Ainul Hldaya, Vol. 2, pp. 494 and 501, Jamiaul Jaafri, p. 524, Bahar-e-Shariat. Vol. 9, p. 106, Tabyinul Haqaiq, p. 221, Raddul Mukhtar, Vol.3, p. 206. Konzul Daqatq. p. 192, Bahrur Raiq, Vol. 5, p. 54, Bidayatul Mujtahid, Vol. 2, p. 412. For the second proposition that unless the thief goes out of the 'hirz' he cannot be visited with the penalty of amputation of hand, reliance was placed upon Wasail-ul-Shia, Vol. 18, p. 509, Almabsoot, Vol. 9, p. 147. 30. The whole point, therefore, is whether Masjid is a 'hirz' for the protection of its property. This point has been discussed in some detail in Kttabul Fiqahby Abdul Rehman Aijaziri (Urdu translation). Vol. 5, p. 343. It is stated there that it is the Hanafi view that since a mosque is not con­ structed as a place for protection of property but remains open from manoeurving to evening without any guard, the theft of the poperty of the mosque forexample mats, chandelier etc. is not visited with the penalty of cutting of land. In fact if the property is not protected or guarded, its theft is not liable to Hadd punishment. But the Mallkis say that the door of the mosque as well as what is inside it including Gargets, mats, chandelier are all under the protection of the mosque wherever they might be placed and if the value of the property exceeds 'nisab' the sentence of cutting of hands must be imposed on the thief. And it is not one of the conditions for awarding this punish­ment that the stolen property may be atken out of the mosque. He is liable to hadd when he removes anything from where it was placed even if for this re­ moval he breaks the roof or flooring etc. According to Shafie if a Muslim commits theft of the door, the trees, fencing, four walls, the roof or the chan­ delier, kept there for decoration, his hands will be amputated but not in the theft of carpets, mats of lanterns, since these properties which are for the good of the community, are like the property of Baitulmal. However if the theft be of valuable carpets and carpets for decoration or of the covering of the pulpit, his hand will be cut. 31. In Al-mughni by Ibn-e-Qudama, Vol. 8, p. 253 theopinions of different schools of thought are given. It is stated if someone commits theft of doors of the mosque or of the Caaba or anything from its roof, there are two opinions about him. Firstly he is liable to cutting of hand and this is the opinion of Shafie, Abu-Alqasiffi, Sahib-e-Malik, Abu Saur and Iba-ul-Munzir that he has committed from 'hirz' for such things are kept in hirz and there is no doubt about it. The second opinion is that there is no cutting of hand and this is the opinion of those who act on Rai (opinion). The ground is that no one is the owner of the property from among the creatures of Allah and it is like com­ mitting theft from Baitulmal, 32. In Badaiul Sanai, Vol. 7, p. 74 it is stated that mosque by itself is not a hirz' in view of the permission to enter it but it becomes 'hirz' by virtue of there being a guard. And if there be a candelier it become 'hirz' on account of guard and not the whole of the mosque and if it is removed its removal is from the 'hirz' and is liable for amputation. 33. In view of these different opinions it will not be correct to say that a mosque is not a hirz even for its valuable property. In the present case Muhammad Siddiq was in the mosque. He is stated to be a Khadim. Muhammad Hussain was also there. The presence of others means that the place was guarded, since no person who comes to offer prayer will allow anyone to take away any thing from the mosque. 34. The view of Imam Malik is more acceptable and it appears that! Imam Malik had considered the mosque to be a carporate body with a right \G to own property, as also a 'hirz'. 35. The definition of 'hirz' in the Ordinance does not make any sception in favour of properties which are open to entry by all persons. It is therefore, clear that the place where the wall clock was its 'hirz' and its re­ moval from that place by the appellant made him liable to punishment a's Hadd. The appeal is, therefore, dismissed and the sentence of amputation of hand is confirmed. (TQM) Appeal dismissed.

P L J 1983 FSC 122 P L J 1983 FSC 122 (Appellate Jurisdiction) Present: aftab hussain, C.J MEMOONA KAUSAR—Appellant versus THE STATE—Respondent Criminal Appeals No. 13/L & 19/L of 1983, decided on 29-3-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (Vn of 1979)—

S. 10(2)— Zina —Offence of—Lady Doctor—Evidence of—Conviction on basis of—Lady Doctor entertaining some doubts in her medical exami­ nation report and suggesting urine examinations for pregnancy tests— Held: Element of doubt about certainty of result of her examination having been introduced, benefit of doubt in circumstances to be given to appellant. [P. 12415 (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VD of 1979)— —S. 10(2) read with Evidence Act (I of 1872)—S. 24 & Criminal Procedure Code (V of 1898)—S. 164— Zina— Offence of—Confession—Recording of—Admissibility in evidence—Appellant retained in Police Station as witness for two days and then produced before Magistrate for making statement under S. 164, Cr. ,P.C. as abductee (and not as accused)— Held: Appellant having not been made accused person for sometime in order to be prevailed upon by police officer to make confessional state­ ment, such statement recorded by Magistrate being result of some induce­ ment by police officer not to be admissible as statement or confession. [P. 123] ,4 Mr. Mahmood Ahmad Chaudhry and Mr. Akmal Saleemi, Advocates for Appellant. Mian Nusrat Ullah, Advocate for the State. Date of hearing: 29-3-1983. judgment This order will dispose of Criminal Appeals No. 13/L a'nd 19/L of 1983 since they arise out of the same order. 2. Mst. Memoona Kausar and Asghar Ali have filed these appeals against the order of Syed Muhammad Zafar Babar, Additional Sessions Judge, Lahore dated 12-12-1982, by which he convicted both of them under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced Asghar Ali to five years R.I., 10 stripes, Rs. 3,000/-, as fine (one year's R.I. in default) and Sentenced Mst. Memoona Kausar to two years R.I., and Rs. 1,000/-, as fine (in default six months R.I.). 3. The prosecution case is that the two convicts had developed illicit liaison and ultimately on the 20th of April, 1982, Asghar Ali kidnapped Mst. Memoona Kausar. . It is stated that Mst. Memoona Kausar had gone to a Doctor for getting some medicine to relieve of the pain in her ear. She was accompanied by Asghar Ali and both of them disappeared from the Clinic of the Doctor. The First Infdrmation Report of this occurrence was given by Sardar Beg, P.W. 5 father of Mst. Memoona Kausar on the 4th of May,. 1982. There are two versions regarding the recovery of 'Mst. Memoona Kausar and arrest of Asghar All appellant. Maqsood Ali, P.W. 8, said that he arrested Asghar Ali when he was in the company of Mst. Memoona Kausar on the 31st of May, 1982, from the Bus Stop in Baghbanpura. The story given by P.W. 5, Sardar Beg is that the recovery of Mst. Memoona Kausar was made from the house of brother-in-law of Asghar Ali where Asghar Ali was also present. 4. Mst. Memoona Kausar was arrested and kept in the Police Station for two days and on the 15th of May, 1982, an application was made by the Police to a Magistrate for recording her statement as an abductee (and not as an accused) under Section 164 Cr.P.C. The Magistrate recorded the statement after warning her that it could be used against her. He also disclosed his own identity to her. He gave her sufficient time to ponder over the matter but he did not inform her that she would no longer be remanded to Police custody but would be sent to the judicial lock up. 5. After her statement, Mst. Memoona Kausar was arrested by the Police as a co-accused for commission of the offence under Section 10(2) of the Ordinance. 6. Mst. Memoona Kausar was medically examined by Lady Dr. Akhtar- Un-Nisa, P.W. 1, who found that she had eight week's pregnancy but advised her, "urine examination for pregnancy." The urine test was carried out at Cardex Clinic by lady Dr. Ghazala but her positive repojt of the test was proved by Dr. Abdul Majid Khan^P.W. 2. 7. Three witnesses were produced to prove the offence. P.W. 4, Mst. Firdous Akhtar sister of Mst. Memoona Kausar was declared hostile and nothing turns upon her evidence against any of the appellant. P.W. 5, Sardar Beg is not a witness of any occurrence or even of the alleged abduction. But contrary to the statement of the Police Officer, he, as stated above, said that the recovery of Mst. Memoona Kausar was effected from the house of brotherin-law of Asghar Ali appellant. He also said that Asghar Ali was living separa­ tely from his parents which means that the recovery was not from his actual custody. 8. P.W. 6, Nek Mohammad who appeared as a Wajtakkar witness stated that though he had recognised Asghar Ali in the Clinic of the Doctor but he had not recognized the lady accompanying him. The evidence is of no use. 9. The alleged confessional statement of Mst. Memoona Kausar is not even worth the paper on which it was written for several reasons. Mst. Memoona Kausar had not been arrested as an accused person but had been retained in the Police Station as a witness for two days which'is itself a signifi­ cant matter. Thereafter, she was produced before the Magistrate for her statement under Section 164 Cr.P.C. as an abductee which means that she was to be examined as a witness only. The Magistrate did not inform her that she would be sent to the judicial lock up. In fact he could not have given her this information because she was never treated as accused person by the Police upto that time. It is not, therefore, difficult to infer from these circumstances, that she was not made an accused person for sometime so that she may be prevailed upon by the Police Officer to make a statement which might be con­ fessional in character. The statement must be a result of some promise made by the Police Officer. Such statement is neither admissible as a statement nor as a confession. 10. It is not admissible as a statement because of the provision of Section 145 of the Evidence Act. It is also not admissible as a confessional statement for the reasons already recorded. 11. From this it would be clear that there is no evidence against Asghar Ali and he is liable to be acquitted. The only evidence against Mst. Memoona Kausar is that of P.W. 1, and P. W. 2. The statement of P.W. 2, however, does not go to the extent of establishing that the urine examined by lady Dr. Ghazala was really the urine of Mst. Memoona Kausar. The evidence of P.W. 2 and of the urine test is of no help to the prosecution. 12. Generally, the evidence of lady Dr. Akhtar-Un-Nisa, P.W. 1, should have been sufficient for the conviction of Mst. Memoona Kausar but by suggesting in the medical examination report that she should unedergo urine examination for pregnancy tests, she had introduced an element of doubt about the certainty of the result of her examination. This means that she still entertained some doubts which she wanted to resolve by the suggested urine test. The benefit of doubt in these circumstances must be given to Mst. Memoona Kausar. 13. These appeals are therefore, accepted, the conviction and sentences of both tin appellants are set-aside and they are acquitted. Both of them are on bail. Their bail bonds are hereby discharged. (TQM) Appeals accepted.

PL J 1983 FSC 126 PL J 1983 FSC 126 (Appellate Jurisdiction) Present: aftab hussain, C.J. & malik ghulam alt, J Mst. JAMILA BIBI—Appellant versus MUHAMMAD YASIN etc,— Respondents Criminal Appeal No. 81/L of 1982, decided on 20-2-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VH of 1979)—

S. 10(3)— Zina-bil-Jabr—QSence of—Victim subjected to sexual inter- .course in her house in darkness of night by someone and identification of offender immediately or during course of commission of offence re­ maining doubtful—Complainant in order to make out case of identification of respondent (accused) adding light of diya but such diya never taken into possession by police—Victim raising alarm immediately on seeing respondent yet her husband sleeping only few feet away arriving at spot after completion of sexual act—Simultaneous appearance of witnesses seeing accused running away also remaining doubtful^-/feW; Court being required to act on certainty and not on probability, accused to be entitled to benefit of doubt. [Pp. 127 & 128] A & B (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10 (3), & Offence of Qazf (Enforcement of Hadd) Ordinance (VIIJ of 1979)—Ss. 7 & 8— Zina-bil-Jabr— Offence of—Trial in—Bad character of complainant—Evidence regarding—Disapproval of— Held: Evidenceabout bad character of complainant not to be approved in case under S..10(3) of Ordinance (VII of 1979)—Held further: Complainant in such case to be competent to lodge complaint for Qazf against witness. [P. 128] C & D, Mr. Zia Muhammad Mirza, Advocate for Appellant. Mr. Zahid Hussain Khan, Advocate for Respondent. Date of hearing: 20-2-1983. judgment Aftab Hussain, C. J. —This is a complainant's appeal against the order of acquittal of Muhammad Yaseen Shah passed on 21-7-1982 by S. Sibtain Rjiza Naqvi, Sessions Judge, Khushab. 2. Muhammad Yaseen Shah was tried on a charge under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The prosecution allegation is that Mst. Jamila Bibi complainant was sleeping about 7 days ago in her room on a cot with two children one on each side when the respondent opened the door of the room. Hearing the noise she woke up and saw the respondent standing besides the cot. On her raising the alarm, the appellant grasped her and taking away her shalwar started committing zina-bil-jabr with her. During the course of the commission of the offence he gagged her mouth "with one hand. When the respondent had finished his job he went out of the room. The husband of Mst. Jamila reached the door by that time. The respondent therefore, ran away. He was seen running by the husband (P.W. 2 Ahmad Shah). Two other witnesses namely Dan Shah and Sodan Shah P.W. 5 and 6 whose houses are at a distance of 14 or 15 Ahatas were also attracted by the alarm. They also saw the respondent run­ ning away. 3. The police got the complainant medically examined by lady Dr. Shamim Barlas, P.W. 3, while the respondent was medically examined at the instance of the police by Dr. Riaz Ali, P.W. 4, on the 21st of December, 1980. The lady doctor was unable to give a report of commission of Zina-bil-jabr since the complainant was accustomed to sexual intercourse. She however, took two vaginal swabs which were sent to the Chemical Examiner but his report is in the negative. In order to prove the prosecution case the above named four witnesses namely Mst. Jamila, P.W. 1, Ahmad Shah, P.W. 2 (her husband), Dan Shah, P.W. 5 and Sodan Shah, P.W. 6 the witnesses were produced. 5. The complainant and the respondent are inter related The imme­ diate relationship between the complainant and the respondent was that her son Ghulam Abbas was married to the daughter of the complainant. But she had died about two years before the alleged occurrence. 6. The defence version is that Mst. Jamila and her husband were turned out earlier from another Village Chak No. 15 because of the bad reputation of Mst. Jamila. After the death of her daughter Mst. Jamila wanted to wed her second daughter who was about eight years old, to Ghulam Abbas but he did not agree to this suggestion. As regards P.W.s 5 and 6, it was stated that they were on inimical terms with him. This is proved by the fact that in a case under Section 107/151 Code of Criminal Procedure the two witnesses were bound down on one side while the complainant and the accused persons were bound down on the other side which means that there was a dispute between the complainant and the accused on the one hand and the two wit­ nesses on the other hand. 7. It is clear from the site plan Ex. P.B. that between the room in which the offence is said to have been committed and the room reserved for cattle in which Ahmad Shah was sleeping, there is only one room which appears to have been used for keeping the produce of land. Ahmad Shah was therefore, in the same house and only a few feet away from the room of the complainant and yet he could arrive at the spot only after the sexual act was completed by his wife which just have taken at least sometime. This, is despite the fact that the alarm is said to have been raised by the complainant immediately on seeing the respondent. It is further strange that P.W. 5 and P.W. 6 almost simultaneously reached the spot and were in a position to see the responden' running, although at that time they were at a distance of about 15 Karams where (they were attending their ailing sister in law. It appears to us that none of the Jthree witnesses P.W. 2, 5 and 6 had come immediately after Jhe commission jof the offence or had seen the offender running. 8. The only evidence which requires to be considered is the evidence of Mst. Jamila, P.W. 1. In order to make out a case of the identification of the respondent she added that there was light of the diya in the room but the diya was not taken into possession by the Police. In these circumstances it is diffi­ cult to believe the story of the burning of the diya. It appears that the room was in total darkness and it was not possible for her to identify the person who had committed the offence. We are convinced that she had been subjected to sexual intercourse by somebody but we doubt that she had been abie to identify the offender immediately or during the course of commission of the offence. It appears that she might have conjectured at that time that the res­ pondent had committed the offence. Since we have to act on certainty and not probablity, we have no option but to give benefits of doubt to the respondent. 9. It is worth while mentioning that according to the First Information Report the delay in that report was caused by the interference of the village folk who were trying to bring about the compromise but this version was not reported by P.W. 1 in her statement. On the other hand, she stated in answer to a cross-examination question that she had made the report to the Police the next day. The Investigating Officer, P.W. 7, had also to admit that he had recorded the First Information Report on receiving the order of the Assistant Superintendent of Police. This means that the version given in the First Information Report about the delay is ah addition by the Police who wanted to cover up their own conduct. Otherwise, the complainant party was vigilant enough to give the First Information Report as soon as possible. The same was not .however, recorded by the Police, till the complainant approached the higher Police Officers. Despite this however, we are not conviced that the com­ plainant had identified the respondent during the course of the commission of the offence. D.W. 1 appeared to support the version of the defence inter alia about the bad character of the complainant. We can not place any reliance upon such evidence to sully the fair name of a woman. In fact, such type of evidence should not be countenanced. We dismiss this appeal for the reasons given above. It would be open to the complainant to lodge complaint for Qazf against (TQM) Appeal'dismissed.

P L J 1983 FSC 128 P L J 1983 FSC 128 (Appellate Jurisdiction) Present: ali hussain qazilbash, J ZAHEER—Appellant versus THE STATE—Respondent Criminal Appeals No. 132/1 & 133/1 of 1982, decided on 17-1-1983, (i) Offence of Zina (Enforcement of Hadood) Ordinance (Vjj O f 1979)—

S, 19(2)—Offence liable to hadd— Abetment of—Held: Court to be competent to impose punishment to abettor guilt of offence liable to hadd —Prosecution in case failing to make out offence liable to hadd against any of appellants— Held: Provisions of section being not applic­ able, conviction and sentence of appellants under same to be set aside. [P. 130 & 131] A (ii) Criminal Trial—

-Evidence—Appraisal of—Witness—Veracity of—Witness unnecessa­ rily rather dishonestly implicating acquitted accused in commission of crime— Held: Veracity of witness having been discredited by such fact alone, evidence of witness to be discarded, [P. 131 ] B (iii) Criminal Trial—

Witnesses—Non-production of—Effect of—Prosecution failing to produce certain persons to substantiate or support version given by an­ other witness— Held: Non-production of such persons to suggest such witnesses if produced, their evidence not to support prosecution story— Evidence Act (I of 1872)—S. 114, Illustration (g). [P. 131] C. Cr. Appeal No. 132/1 of 1982 Mr. M. Bilal, Advocate for Appellant. Sahibzada Akhtar Munir, Assistant Advocate General, NWFP for the State. Cr. Appeal No. 133/1 of 1982 Malik Rab Nawaz Noon, Advocate for the Appellant. Sahibzada Akhtar Munir, Assistant Advocate-General, • NWFP for the State. Dates of hearing: 16/17-1983. judgment Gohar Rehman, his brother Sher Zaman, his wife Mst. Rahim Jan, his son Zahir, his daughter Mst. .Shamim Bibi and Mst. Anwar Jan all residents of Nalach District Abbottabad were charged and tried by the learned Sessions Judge Abbottabad under sections 16 and 19(2) of Ordinance VII of 1979. The learned Trial Court vide his Judgment dated 6-10-1982 while acquitting the rest of the accused convicted Zahir and Mst. Anwar Jan for offences charged under sections 16 and 19(2) of Ordinance VII of 1979 and sentenced both of them to 5 years R.I. each plus a fine of Rs. 1,000/- each, in default of payment of whereof to undergo imprisonment further period of one year. Both the accused were also awarded 15 stripes each. The above judgment has been challenged through the present appeals by both the convicts. 2. The prosecution machinery was set in motion when on 27-10-1981 at 11-00 p.m. Mohammad Saddique the brother-in-law of Mst. Anwar Jan made a report at the police station Donga Galli alleging therein that today 7-00 in the morning, as usual, his sister-in-law Mst. Anwar Jan wife of Mohammad Bashir his brother had gone to Baghan Forest for collecting leaves but did not return till afternoon. He became suspicious and left to locate her whereabouts in the process at evening time near Nathia Gali he met Sher Ahmad and Yousuf who told him that they had seen Mst. Anwar Jan with Zahir at the Baghan Forest talking to each other and when they enquired as what was the matter Zahir told them that he was out for hunting. At Peshin wela when the mentioned persons again went to Baghan Forest they saw near the Pine Hotel Mst. Anwar Jan in the accompany of Zahir, his father Gohar Rehman, his uncle Sher Zaman his mother Mst. Rahim Jan and his sister Mst. Shamim Bibi going towards the Government School Nathia Gali. On receipt of the above information he (Mohammad Saddique) sent Khushal and Jalal the uncle of Zahir accused in a Jirga for the return of Mst. Anwar Jan but with no result. The complainant further alleged that earlier too he had once been Zahir and Mst. Anwar Jan talking to each other and he had demanded of -Zahir not to come near his house and also reprimanded his women folk to desist from talking to Zahir. His brother Mohammad Bashir had gone to Dubai for earning his livlihqod. As a result of his wedlock Mst. Anwar Jan, they have a son aged 6/7 years and a daughter aged 4 years. Zahir who is unmarried has enticed away his sister-in-law in order to enter into a marriage with her and in this effort the other accused are assisting him. 3. This report was recorded by Sadiq Hussain H.C. Police Station Donga Galli P.W. 10, according to the dictation of the complainant which was read over to him and after accepting it to be correct was signed by him. The report was then handed over to Mohammad Arif S.H.O. Police Station Donga Galli P.W. 11 who proceeded to the spot prepared its site plan Ex-PB correctly. He recovered a Chaddar containing leaves Ex-P3 vide Memo Ex-P.W. 3/1. On 30-10-1981 he alongwith Sadiq Hussain P.W. 10 reached the cattle-shed of Jeenda Khan situated in the limits of Jansa near Bagla and arrested Zahir and Mst. Anwar Jan from there vide recovery memo Ex-P.W. 4/1. The scketch in respect of the cattle-shed is Ex-PC. The investigation officer after the arrest of the two accusgd took into possession Shalwar Ex.-P. 1 of Mst. Anwar Jan through lady constable and Shalwar Ex-P. 2 of Zahir accused and sealed them into separate parcels vide memo Ex-P.W. 1/1 and the same were sent to the Chemical Examiner whose result is Ex-PQ. Both Mst. Anwar Jan and Zahir were got medically examined and after the completion of the investigation the accused were challaned under section 5/10/11/16 of Ordinance VII of 1979, and the case was sent to the Court of Illaqa Magistrate, who after completing the formalities required under the law sent up the case for trial to the Court of the learned Sessions Judge. The prosecution at the trial in support of its case produced as ma y as 12 witnesses. The appellants denied the charge and pleaded innocence. Mst. Anwar Jan as against the charge stated that on the day of occurrence she was cutting the grass and plucking leaves when accused came to the spot and they took her forcibly through jungle to a Dhara and all the accused except Zahir pushed her inside the Dhara and left the accused Zahir in the Dhara. Re­ maining accused while going back locked the door from outside which was opened by the police the following day. Again stated that accused Zahir was not left with her in the Dhara. Adding to above her statement she also stated that none of the accused committed sexual intercourse with her. After considering the evidence the trial Court passed the impugned order which is the subject matter of the two appeals. 4. I heard the learned counsel for the parties and perused the record. In the this case besides convicting the appellants under section 16 of the Ordi­ nance VII of 1979 the learned trial Court has also convicted and sentenced them under section 19(2) ibid. I would in the first instance, like to deal with the conviction and sentence of the appellants under the latter provision of law. Section 19 sub-section (2) of Ordinance VII of 1979 reads as follows:— "Whoever is guilty of the abetment of an offence liable to hadd under this Ordinaace shall be liable to the punishment provided' for such offence as tazir." . ' 5. The plain reading of the above provision shows that it empowers the Courts, to impose spunishment to an abettor who is gailty of an offence liable to hadd. In the case in hand no offence liable to hadd has been made out against any of the appellants, therefore, the provision of section 19(2) of the said Ordinance has obviously been mis-applied,by the learned trial Court. The conviction and sentence of the appellants under the above provision of law is therefore bad and is hereby set aside. Both the appellants are thus acquitted of the charge under section 19(2) of the Ordinance VII of 1979. • 6. As far as the charge under section 16 of the Ordinance is concerned, the trial court has based the conviction of the appellants on the evidence of Mohammad Saddique P.W. 8, Sher Ahmad P.W. 9, the medical evidence, report of the Chemical Examiner and recovery of two appellants from the cattle-shed situated near Jansa % I have thoroughly examined the evidence referred to above and am afraid I co'uld not reconcile myself with the findings arrived at bythe learned Sessions Judge. Mst. Anwar Jan is admittedly a married woman having children and is the cousin of co-appellant. Mohammad Saddique P.W. or for the matter of that none of the inmates of the house saw Zahir appellant to take away or entice Mst. Anwar Jan from the house. It was Sher Ahmad P.W. and Yousaf abondoned P.W. who had allegedly seen the appellants in the morning in the forest talking to each other while collecting leaves. It was again these two very persons who had seen both the appellants in the afternoon going towards the Government House, Nathia GaJli and were at that time accompanied by the acquitted accused, and ultimately it was these two persons who had informed Mohammad Saddique complainant that they had seen his sister-in-law going with Zahir. Sher Ahmad P.W. and Yousaf the given up P.W. therefore, were very important witnesses but the prosecution in its wisdom produced only Sher Ahmad. This witness being partisan—he being the servant in a hotel owned by the two uncles of Mohammad Saddique P.W. The fact that Sher Ahmad P.W. is not a truthful witness is manifestly clear because he unnecessarily rather dishonestly implicated the acquitted accused in the Com­ mission of the crime. In my view this fact alone is sufficient to discredit the veracity of this witness and hence his evidence is discarded. As far as Mohammad Siddique P.W. is concerned, at the trial he deposed that he had sent Khushal and Jalal his and Zahir, uncles to the house of Gohar Rehman (the acquitted accused) for the return of his sister-in-law. He also deposed that he had been searching Mst. Anwar Jan alongwith Molangi Khan, Azad Khan, Akbar Khan etc., etc. But strangly enough the prosecution has not produced any of the above persons to substantiate or support the versions given by Saddique P.W. The non production of these persons clearly suggests that hadj they been produced they would have not toed the prosecution line. Moham-| c mad Saddique P.W. also deposed at the trial that Sher Ahmad and Yousaf were not serving in the hotel of his uncle at Moochi Dhara, but this has been contradicted by Sher Ahmad P.W. 9 who admitted that he was working as ser­ vant in the hotel can by the uncle of Mohammad Saddique P.W. Another important fact which militates against the conduct of Mohammad Saddique P.W. is that according to his version Mst. Anwar Jan was resident in his house and under his protection but he would not accompany the police raiding party to the cattleshed wherefrom both the appellants were allegedly recovered. The attitude of Mohammad Saddique P.W. thus clearly indicates that either he was not at all interested in the recovery of his sister-in-law or the whole matter had been cooked up with ulterior motives and this I saw sb because the recovery of the two appellants is also not free from doubt—reference in this respect is invited to the statement of Mohabat Khan P.W. 4—the only independent witness to the so-called recovery^ he deposed that no recovery and arrest of the accused was made in his presence from any shed and that the recovery memo Ex-P.W. 4/1 was got signed by him by the police at his shop at Moochi Dhara. Hence his version also cannot be relied upon. 1. As far as the medical evidence is concerned, it too is of little signifi­ cance because firstly no charge of adultery has been laid at the doors of the appellant and secondly Dr. Mrs. Rifhat Nasim P.W. 7 admitted at the trial that she could not say positively whether the woman examined by her was Mst. Anwar Jan because she did not note any mark of identification of Mst. Anwar Jan. The appellant i.e., Mst. Anwar Jan was taken and produced before the Lady Doctor by Fazal Dad A.S.I, for her medical examination but this man has also not been produced by the prosecution to support its version that he had produced none but Mst. Anwar Jan before the lady Doctor for her medical examination. Mst. Anwar Jan appellant has categorically denied sexual intercourse with her by Zahir or for that matter the other accused, there­ fore, the opinion of the Chemical Examiner also looses its significance Both the appellants are cousins— inter se-one is married with two grown up children the other was to be married soon, therefore, their mere talking to or meeting each other near the house of Mohammad Saddique P.W. or in the forest would not lead on to believe that they would be indulging in immoral acti­ vities. 8. In view of the above 1 a;cept the appeals set aside the conviction and sentence of the appellants and acquitted of the charge. They have already been released on bail and their bail bonds are discharged. (TQM) Appeals accepted.

PLJ 1983 FSC 132 PLJ 1983 FSC 132 (Appellate Jurisdiction) Present: aftab hussain, C.J Mirza BASHIR AHMAD—Petitioner versus THE STATE—Respondent Criminal Revision Petition No. 58(A)/1 of 1982, decided on 24-2-1983. (i) Constitution of Pakistan, 1973—

Arts. 185(3) & 189—Leave to appeal—Grant of—Order of—Observa­ tions in—Binding nature of— Held: Observations made by Supreme Court while granting leave to appeal not to be treated to be law decided. [P. 133J/4 (ii) Sentence— —-Reduction or enhancement of—Precedents—Binding nature of— Held: Reduction or enhancement of sentence to depend on facts of each case and such decision in particular case to be no decision on point of law. [P. 133] B Mr. Arif Iqbal Hussain Bhatti, Advocate for Appellant. Mr. Shuja-ud-Din Qureshi, Advocate for the St#te. Date of hearing: 24-2-1983. ' ./ judgment This is a revision petition against the appellate order of the learned Addi­ tional Sessions Judge, Sargodha dated 1-6-1982 in a case of drinking. The petitioner was found drunk by ,Mohammad Akbar head constable and Mohammad Khan FC in Bum Chowk, Sargodha. He was taken to Doctor Abidur Rehman for medical examination who found him to be under the influence of liquor, on account of inter alia the smell coming from his mouth. The Additional Deputy Commissioner (General) in his capacity as Magistrate convicted him under Section 11 (a) of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to 15 days R.I. and 10 stripes. The petitioner filed an appeal before the Additional Sessions Judge, who held in his judgment that the case was proved against the appellant. He how­ ever, made an observation about inadequacy of the sentence with which I am in full agreement. The case of the petitioner in the revision petition is merely based upon the violation of Rule 6 of the rules framed in the Ordinance. This question how­ ever, has been decided by a Full Bench of this Court in Masood Ahmad v. The State (PLJ 1983 FSC 55). It was held that rule 6 had been omitted and is no longer of any relevance even in an appeal pending at the time of omission. It was further held that rule 6 cannot be applied except when a search warrant is issued by the Prohibition Officer and during the course of execution of that warrant arrest is made under Article 12. It was further held that in any case any such violation would be merely an irregularity which could not affect the trial except in a case where the accused is prejudiced. This was sufficient ansewr to the above point. The learned counsel, however, submitted that rule 5 of the Punjab Prohibi­ tion (Enforcement of Hadd) Rules, 1979 laid down a number of other criteria for diagnosing whether a person is drunk. When it was pointed to him that the smell of the breath was one such criterion, he had to concede the point. The learned counsel brought to my notice Mohammad Ilyas v. The State (PLJ 1983 SC. 90), in which the Supreme Court of Pakistan had given special leave to appeal for considering the definition of drinking. In that case, there are certain observations regarding the judgment of the Federal Shariat Court, State v. Muhammad Tariq (PLJ 1982 FSC 88), in which it is held that offence of drinking cannot be proved simply by smell of the mouth of the drinker. These observations simply provide the rationale of imposing the condition of necessity of two eye witnesses who see the accused drinking liquor by mouth. The case before me is of Taazir in which any other evidence e.g. the evidence as provided under Rule 5 may be sufficient for conviction. In any case thej Supreme Court has only given special leave to appeal. These observations! cannot be treated to be a law decided. - The learned counsel urged that the Federal Shariat Court in Shah Muhammad v. The State (PLD 1982 FSC 239) reduced the sentence of the appellant to that already undergone. This is not a decision on $ point of law. The reduction! or enhancement of sentence depends on the facts of each particular case. In! B that case, a cigarette of charas was smoked and the appellant had already undergone 3 months R.I. In the present case the sentence itself is inadequate. The petition is therefore, dismissed. The petitioner is said to have already undergone the sentence of imprison-ment. If so, he shall surrender to undergo the sentence of stripes. The sentence shall be carried out without delay so that he may not be compelled to remain unnecessarily or unreasonably in the jail. In case he does not surrender within three weeks he shall be arrested for this purpose. (TQM) Petitions dismissed.

PL J 1983 FSC 134 PL J 1983 FSC 134 (Appellate Jurisdiction) Present: ali hussain qazilbash & zahoor-ul-haq, JJ Mst. JEHAN MINA—Appellant Versus THE STATE—Respondent Criminal Appeal No. 35/P of 1982 & Jail Criminal Appeal No. 167/1— 1982, decided on 22-2-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 5—Zlna liable to hadd: —Offence of—Trial court disbelieving appelant and acquitting other co-accused on ground that punishment under S. 5 not to be awarded to two male accused merely on statement of appellant regarding her having been subjected to Zina-bil-jabr by them— Held: Coaccused not to be convicted on basis of statement of other co-accused throwing whole blame of offence of zlna on them and herself not disclosing offence of zina-bil-jabr at time of commission of same inspite of having opportunity of doing same. [P. 137] A (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— —Ss. 5 & 8(a) and Criminal Procedure Code (V of 1898)—S. 342— Zina liable to < hadd —Proof of—Confession of guilt—Statement of accused u/s '342, Cr.P.C.—Exculpatory nature of—Appellant making exculpatory statement (u/s. 342, Cr.P.C.) alleging zina-bil-jabr having been committed upon her by two acquitted co-accus;d— Held: Such statement on her part riot to be termed as confession as stipulated u/s. 8 (a) of Ordinance. [P. 13715 (iii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

Ss. 5 & 8— Zina liable to hadd—Proof of—No adult male Muslim witness proving appellant having committed offence of zina with anyone— Held: Proof required under S. 8 being lacking, conviction of appellant not to toe maintained. [P. 137] C (iv) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10(2)— Zina —Offence of—Appellant admittedly bearing child for about 5/6 months without disclosing fact of her having been subjected to Zina-bil-Jabr by any person and not reasonably substantiating her having been subjected to Zina-bil-Jabr (by her real uncle and his son) — Held: Appellant having not explained reason for her remaining quiet for such long time inspite of her having full and complete apportunity of complaining to her nearest relations, her unexplained pregnancy coupled with fact of her being unmarried girl to be basis for her con­ viction for her having intercourse with someone out of her own free will. [Pp. 137 & 138] D,E,F&G (iv) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10(2)— Zina— Offence of—Sentence for—Appellant, girl of tender age, lacking benefit of paternal affection, convicted under S. 10(2) of Ordinance— Held: Sentence awarded in circumstances to be 3 years R. 1 plus 10 stripes. [P. 138] H (vi) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10(2) read with Criminal Procedure Code (V of 1898)—S. 382-B— Zina —Offence of—Sentence—Period of detention—Commutation of— Held: Time spent by appellant in jail before her conviction to be treated towards sentence of imprisonment to be undergone by her. [P. 139] J Mr. Tariq Jamal, Advocate for Appellant. Sahibzada Akhtar Munir, A.A.G., N.W.F.P. for the State. Dates of hearing: 20/22-2-1983. judgment Zahoor-ul Haq, J. —There are two criminal appeals filed by the same convict Mst. Jehan Mina, one from the jail and one through her counsel against the judgment of Sessions Judge, Dir., dated 30-11-1982, whereby the appellant had been convicted under Section 5 of Zina (Hudood) Ordinance VII of 1979, and sentenced to suffer 100 stripes. The two co-accused Gulab Mian and Rehmat Faqir who had also been charged under Section 5 of Ordinance VII of 1979 were however acquitted. 2. On 5-9-1982 Noor Said, P.W. 1 lodged a report with Godigar Police Station at 1700 hrs. stating that about 6 months earlier his niece Mst, Jehan Mina used to go to the house of his brother-in-law Gulab Mian from the house of his father for domestic work because his sister Mst. Sakina was sick. About 3/4 months earlier Mst. Jehan Mina came to live with him and is still with him. Some days back the complainant came to know that Mst. Jehan is preg­ nant. On enquiring from her the complainant learnt that about 5/6 months earlier Gulab Mian son of Abdur Rehman and Rehmat Faqir son of Gulab Mian (father and son) had been committing illicit intercourse with her as a result of which she became pregnant for about 5!6 months. The F.I.R. Ex. P.A. was thus concluded. The same had been recorded by P.W. 6 Sultanat Khan, S.H.O. 3. The case was investigated by Sultanat Khan, P.W. 6. He prepared site plan of house of Gulab Mian and Rehmat Faqir Ex.P.D. at the instance of Mst. Jehan Mina. He recorded statements of prosecution witnesses and arrested the accused. He got Mst. Jehan Mina examined by lady doctor Tasleem Begum, P.W. 2 for rape. He alsogot accused Rehmat Faqir examined by Dr. Gul Zaman and thereafter challaned the three accused. 4. The prosecution produced seven witnesses in support of its case. Accused Gulab Mian and Rehmat Faqir denied the allegations of prosecution and alleged thet they had been involved at the instance of Noor Said, P.W. 1 with whom they had a land dispute. Mst. Jehan Mina admitted that she was bearing a child. She also stated that she used to go to the house of accused Gulab Mian and Rehmat Faqir for sometime and used to come back to her grand-father. She went to the house of accused to serve her aunt Mst. Sakina as she had fallen ill. There the two accused Gulab Mian and Rehmat Faqir committed zina-bil-jabr with her. 5. P.W. 1 Noor Said reiterated the contents of the F.I.R. which he had filed. He denied in cross examination that he had a dispute with Gulab Mian or Rehmat Faqir over the land. He did not know if Mst. Jehan Mina was grazing her cattle outside in the mountain. He admitted that Mst. Jehan Mina had told him that the accused had committed zina-bil-jabr with her. He also admitted that he lodged the report with the police after a month of his having the knowledge of the pregnancy of Mst. Jehan Mina. He did not know if somebody else had committed zina with Mst. Jehan Mina. He denied that he had falsely charged the accused Gulab Mian and Rehmat Faqir. In reply to court question he stated that Mst. Jehan Mina was unmarried and was sane. 6. P.W. 2 Dr. Tasleem Begum deposed that she examined Mst. Jehan Mina on 8-9-1982 and gave her certificate Ex.P.B. She stated that Mst. Jehan Mina was pregnant for about 6 months. In her opinion it was a case of rape because Mst. Jehan Mina was pregnant and her hymen was ruptured and she was unmarried. Her opinion, however, merely proves intercourse and not rape. 7. P.W. 3 Dr. Gul Zaman stated that he had examined Rehmat Faqir and found him capable of performing the act of coitus. 8. P.W. 4 Mst. Sakina wife of Gulab Mian stated that Mst. Jehan Mina was her niece and she had come to her house and spent two days. She also said that she used to go back to the house of her father to spend the night. In cross examination she stated that Mst. Jehan Mina had not come to her house for a single day before the last Ramazan. She admitted that Noor Said, P.W. had a dispute with the two accused over a land. She also admitted that Mst. Jehan Mina was raped by somebody outside in the mountain when she was grazing cattle and due to fear of ghairat she had not disclosed that fact. But Mst. Jehan Mina never alleged that she was raped by anyone in the moun­ tains.. 9! P.W. 5 Mst. Khaista Grana, wife of Noor Said stated that Mst. Jehan Mini used to live in the house of grand-father Aqal Said. From his house she came to her house. She had not told her anything when she came to her house. ' She did not tell her as to how she had become pregnant. In cross examination she admitted that Aqal Said is the guardian with whom she was living. She hid not enquired from Mst. Jehan Mina as to how she became pregnant. 10. P.W. 6 Sultanat Khan deposed that he was the S.H.O. and he recorded the F.I.R. and made the investigation of the case. His cross examina­ tion is not relevant.

11. In his statement under Section 342 Cr.P.C. Gulab Mian son of Abdur Rehman aged about 55 years denied the charge and allegations of prosecution and stated that except Noor Said nobody else had deposed against him. Noor Said is his nephew with whom he had a land dispute and due to enmity he de­ posed against him. Rehmat Faqir son of Gulab Mian made the same state­ ment under Section 342 Cr.P.C. 12. Mst. Jehan Mina daughter of Ghulam Hussaia aged about 15/16 years in her statement under Section 342 Cr.P.C. stated that she used to go to the house of Gulab Mian and Rehmat Faqir for sometime and used to come back to her grand-father. She went to the house of the accused (meaning Gulab Mian and Rahmat Faqir) to serve Mst. Safcma as she had fallen ill There the two accused Gulab Mian and Rehmat Faqir committed zina-bil-jabr with her. She also stated that she had told Noor Said that the two accused were res­ ponsible for her pregnancy. She also stated that she had been engaged to Muhammad Rehman but not married so far. In reply to a question whether she committed zina with accused Gulab and Rehmat Faqir, she replied that the two accused Gulab Mian and Rehmat Faqir had committed zina-bil-jabr with her. Lastly she made the following statement:— "I am living in the house of my unlce Moor Said complainant because my father had died and my mother had contracted second m'arriage. My grand father Aqal Said had kept me in his house and from his house I went to the house of the accused to serve my aunt Afc/.:Sakina. I spent 2/3 jnonths there. I came back to the house of Npoi^Said, In the month of Ramazan my uncle Noor Said enquired from me as to why I was look­ ing pregnant. On his enquiry I told him that accused Gulab Mian and Rehmat Faqir are responsible for my pregnancy. My uncle narrated this occurrence to Mst. Sakina who came to my house and gave me beating and asked me as to why I was charging the accused. Then my grand father Aqal Said requested my uncle Noor Said to give me to him so that I may be killed. But he refused to hand me over to him". 13. None of the accused led any defence.^ 14. The learned trial Court acquitted Gulab Mian and Rehmat Faqir on the ground that punishment under Section 5 of :the Ordinance could not be awarded to the two male accused merely on the basis of statement of coaccused Mst. Jehan N^ina that she had been subjected to zina-bil-jabr by them. He did not believe the statement -of Mst. Jehan Mina about these accused having committed zina-bil-jabr with her on the ground that if she was a truth­ ful lady why she kept silence for 6 months and why she did not disclose the factum to the ladies of the house. We find that the two co-accused have been correctly acquitted by the learned trial Court because they could-not be con­ victed on the basis of the statement of a co-accused who was throwing the whole blame of the offence of zina upon the other co-accused and she had not disclosed the offence of zUkt-bil-jabr when it was committed although she had the opportunity of doing the same. - - 15. In the case against Mst. Jehan Mina there is no eye witness against her to prove the factum of zina. We do not agree that her statement under Section 342 Cr.P.C. could be regarded as a confession of her guilt because she has in fact made an exculpatory statement by alleging that zina-bil-jabr had been committed upon her by the two acquitted accused. This statement on her part cannot be termed as a confession as stipulated under Section 8(a) of Zina Ordinance. There is also no evidence of four Muslim male adult witnesses against her proving that she had been quilty of the commission of zina with anyone and the obvious result is that her conviction under Section 5 of the Ordinance cannot be maintained because the same -required proof under Section 8 of the same Ordinance which is lacking and hence we are of the clear view that she has not been correctly convicted vnier Section 5 of the Ordinance. 16. That, however, is not the end of the matter as we are clear, in our mind that there is a definite proof in the form of pregnancy of Mst. Jehan Mina proved by the lady doctor Tasleem Begum, P.W. 2 which is a clear proof that Mst. Jehan Mina has had a sexual intercourse with someone. She has explained that pregnancy by alleging-that she had been subjected to zina-bil-jabr by her real .untie Gulab Mian and Rehmat Faqir who are father and son respec­ tively. Her statement against them has been rightly disbelieved by the learned trial Court and therefore, the result is that she has not been able to reasonably substantiate that she had been subjected to zina-bil-jabr. 17., In this respect learned counsel for the defence Mr. Tariq Jamal had drawn o^ir attention to a number of rulings of different High Courts where it hatt beep held that "where prosecution evidence is unreliable and is disbelieved and the conviction is being based on the statement of the accused alone, then the whole statement should be taken into consideration and it should not be disected in parts and merely inculpatory statement cannot be used without taking the exculpatory statement also into consideration." The learned A.A.G. Sahibzada Akhtar Munir, however, drew out attention to PLD-1967-Dacca- 503, where k was observed that Section 342 Cr.P.C. is meant to discover the truth and accused's explanation or his failure to explain is sometimes the most incriminating circumstance against him and that it may be injurious to him if false and unsatisfactory statement is given. 18. We are, however, of the view that in the present case before us the fully proved fact is that Mst. Jehan Mina has been bearing a child for about 5 or 6 months without having disclosed to any person that she had been sub­ jected to zina-bil-jabr by anyone. It is in evidence that she had been living with her grand-father and merely went to the house of Gulab Mian during day time to look after her aunt Mst. Sakina and came back to her grand-father from her work. In fact this position is admitted in the very first answer that she has given under Section 342 Cr.P.C. where she admitted that she used to come back to her grand-father. This clearly shows that she has had the oppor­ tunity of complaining to her grand-father but she never did so. She also had the opportunity of complaining to her real aunt Mst. Sakina where she was working but she did not do so. She also had the opportunity of complaining to Mst. Khaista Garana and even to P.W. Noor Said when she had been sub­ jected to zina-bil-jabr by either the two accused or by anyone. But she did not do so and it was only when her pregnancy had become apparent that she made a statement to Noor Said on his enquiry. It is, therefore, obvious that she has been keeping quiet for more than 5 months and bearing the child and it is, therefore, difficult to believe her statement that zina-btf-jabr had been committed with her.

19. The present case against Mst. Jehan Mina is, therefore, not a case where merely her statement can be regarded as the basis of conviction but in "act the baa> of the conviction is her unexplained pregnancy coupled with the 'act that she is not a married girl. We also find that she has not made any statement in respect of the number of times that the zina was committed with he; and at what place and djiring what hours. She did not take the position|hat the zina had been committed with her at a secluded place in a jungle r^she could not cry for help. She has not even explained as to what was the fof>?e or threat used against her when she was subjected to zina-bil-jabr and she has •itso not explained as to what induced her to keep quiet for such a long time insp^e of having had the full and complete opportunity of complaining to her neare^ .relations namely her grand-father and uncle Noor Said and aunt Mst. Khais\j Garana. In these circumstances, we a"e of the view that Mst. Jehan Mina Xas had an intercourse with scmxme out of her own free will and she has, therefore, committed an offence punishable und;r Section 10(2) of Ordinance. H 15. We have, therefore, altered her conviction from Section 5 of Ordinance VII of 1979 to one under Si ction 10(2) of the sa-ne Ordinance and by a short order dated 22-2-1983 we sentenced her to three years R.I. plus 10 stripes in vie v of her tender age and also on account of the fact that her father was dead and her mother had contracted another marriage and she was, therefore, a girl who lacked the benefit of paternal affection. The stripes should be inflic­ ted in accordance with the provisions of Section 5 of Execution of Punishment of Whipping Ordinance, 1979. Since the appellant has given birth to a child and the rearing of the child is of utmost necessity, therefore, following the (TMQ) FSC 139 Appeal dismissed

P L J 1983 FSC 148 P L J 1983 FSC 148 (Original Jurisdiction) Present: aftab hussain, C.J., Au hussain qazilbash,zahoorul haque, Ch. mohammad. siddiq & malik ghulam ali, JJ MUHAMMAD BASHIR—Petitioner versus GOVERNMENT OF PUNJAB—Respondent !,Shariat Petition No. 5/1 of 1982, decided on 6-2-1983. (i) Punjab Highways Ordinance (XXXII of 1959)— —_Ss. 8,9,10 & 16 read with Constitution of Pakistan, 1973—Art. 203-D— Restrictions on .erection of building—Repugnancy to injunctions of Islam— -Held: Prohibiting erection of any. building between building and. highway by owners of any interest in land though certainly to -amount to encroaching upon their interests, such provisions being" very salutary and also in public interest and compensation having also been provided for such partial damage, same not to be repugnant to injunctions of Islam. [P. 152] A. ' • (ii) Constitntion of Pakistan, 1973—

Art. 203-D read with Punjab Highways Ordinance (XXXH of 1959)— S. 10—Injunctions of Islam—Repugnancy of law to—Declaration regard­ing— Held: Formula for assessment of compensation given in Sub-sec. (4) being just and point of time when los's suffered having also been reason­ ably fixed, provisions not t& be repugnant to injunctions of Islam— Held further: Compensation not necessarily to automatically follow imposition of restriction and to be paid, only on proof of inljrijes tounterest in land suffered or likely to be sunned by pei'soiyhaving such interest and objections in regard to payment of compensation prior to possession not to be warranted. [P. 152] B, C & D Pettioner in person. Ch. Iftikhar Hussain, Advocate for the Federal Govt. Hafiz S. A. Rehman, Advocate for the Govt, of Punjab.- Date of hearing: 6-2-1983. judgment Aftab Hussain, C. J.— The Punjab Highways Ordinance, 1959 was promulgated to consolidate and amend the Law relating to Highways in the province of Punjab. It provides inter alia (a) for laying or making out a Highway (b) turning, diverting or closing it or a .part thereof either temporarily or permanently, (c) widening it, altering its level, Improving or repairing it and (d) regulating the kind, number, and speeding of vehicle by means of barriers, diversion roads and all other means whatsoever. (Section 5). For this pur­ pose it creates a Highway Authority (Section 3). It prohibits every, body from making any encroachment on the Highway (Section 6). It prohibits opening or breaking of the surface of any highway, constructing or carrying any cable, wire, pipe, drain, sewer or channel of any kind, through; across, under or over any highway, repairing or altering or executing any work, on, or in relation to any existing cable, wire, drain, sewer or channel of any kind, running through, in or over such Highways (except with the permission of the Highway Authority). But the Authority itself is exempted from the provisions of Section 6 and Section 7. It provides for temporary closure of highway inter alia for diversion for which reasonable compensation is payable for damage caused to any land, to the owner thereof (Section 12). It also provides for the permanent closure of the Highway subject to the general notice and also subject to the facility of appeal against that o :der. If any interference or damage is caused by reason of any work on a .highway which is done by the order of the Highway Authority, it provides for restoration of the thing inter­fered with or damaged, to its previous position and condition and in case such restoration be hot possible, for replacement of the same facility and payment of compensation wherever necessary subject to the right of the person aggrieved to apply to the Government against the action of the Highway Authority in which case the government is obliged to refer he dispute for decision by arbit­ ration. (Section 14). Provisions'are also made for regulation of classes of vehicles or animals using a highway (Section 15, 19-22). In addition proce­ dural provisions are added (Chapter VI and Section 23). A number of miscejlaneous provisions are also added, for example (a) that all persons acting under the authority of the government 'or any Highway Authority shall be desmed to be public servants (Section 26), (b) that no suit, or legal proceeding shall lie for anything done in good faith under or in pursuance of the Authority or rules made thereunder (Section 27), and (c) that the Government is empowered to frame rules for the purpose of carrying into effect the .provisions of this Ordinance (Section 29). Section 28(2) needs special mention as it provides that where the amount of compensation payable cannot be agreed upen it shall be determined by arbit­ ration. The provisions with which we ,are concerned in this petition are sections 8, 9, 16, 17 read with Section 10 and 18. Section 8(1) provides that it shall not be lawful without the consent of the Highway Authority :-^ (a) to construct of layout any means of access to or from the highway. (b) to erect any building upon land within two hundred and twenty feet from the middle of the highway. Section 9 authorises the Highway Authority to adopt these restrictions as respect any Highway to which section 8 is not applicable after publication of public notices inviting objections and the sanction of the government. Section 16 authorises the Highway Authorities to fix the building line other than that provided in Section 8 i.e., two hundred and twenty feet from the middle of the Highway. This can be done after proper notice inviting objec­ tions to the proposal and the publication of the building lines later determined by the Highway Authority. This addition is also subject to appeal to the go­ vernment which shall refer the matter to arbitration. Section 17 prohibits the construction or laying out any means of access to or from the Highway, and to erect or re-erect any building etc., between the building lines and the highway in respect of which it has been determined. Sub-section (2) of Section 17 provides that should any building or any part thereof lie within the prohibited area, as defined in the last preceding sub­ section, the Highway Authority may, whenever such building or part has either entirely or in greater part burnt or fallen down, by notice, require such building or part when being rebuilt, to be set back to the building line, and if the portion of land thus rendered vacant is included within the boundaries of the highway in relation to which such building line has been determined such portion shall become part of the highway. Like other provisions already noticed for the compensation of damage, sub-Section (2) of Section 17 states that the Highway Authority shall pay compensation to the owner of such portion of land or of the building which existed thereon for any damage caused to him by the setting back of the building. Similarly Section 10' provides for compensating any person having any interest in land for any injury or damage caused to his interest by the imposi­tion of restrictions laid down by the provisions of Section 8 or 9. This Section is reproduced below:— "If any person having any interest in land proves that his interest is injuri­ ously affected by the imposition of restrictions by or under the provisions of Section 8 or 9, he shall be entitled to rsfcover from the Highway Autho­ rity compensation for any injury or damage to such interest. Explanation: For the purpose of this Section the expression 'interest in land' shall mean the interest vested in such person on the day the aforesaid restrictions came into force. (2) No claim for compensation under the last proceeding sub-section for injury or damage shUl be entertained unless the claimant furnishes satis­ factory proof:— (a) that proposals for development at the date of the claim for compen­ sation are immediately practicable or would have been so if this Ordi­ nance had not been passed; and (b) that there is demand for such development; (d) No compensation shall be payable for any injury or damage^in so far as the land is subject to a substantially similar restriction uruier some other enactment; or where compensation in respect of some substantially similar restriction in force under this or any other enactment has already been paid. (e) Subject to the other provisions of this section, compensation to be awarded shall be a sum by which the market value of the interest in land is reduced as a result of restrictions imposed under Section 8 or Section 9. . Section 18 authorises the Highway Authority to acquire any land between the Highway and the building line in acocrdance with the provisions of the Land Acquisition Act, 1894. , ' Moulvi Mohammad Bashir, petitioner who argued the case himself has challenged the provision of clause (b) of Section 8(1) which prohibits erection of any building upon land within two hundred and twenty feet from the middle of the Highway. He has also challenged the consequential provisions of Sec­ tions 8 (2), 9, 10, 11, 16, 17, 18. However during the argument he conceded that Section 18 which provides for acquisition is not repugnant to the Holy Quran and the Sunnah of the Holy Prophet, since the government has the right in shariah too, to acquire land for public purposes for the good of the public. However, he submitted that the price of the acquired land must be paid before possession. The main argument of the petitioner on the vires of Sections 8, 9 and 16 is that it amounts to an illegal interference,, not warranted by the Holy Quran and the Sunnah of the Holy Prophet, with the sacrosanctity of property rights of an individual. In support of this he relied upon Q. 2 : 188 and Q. 4 : 29 which are as follow:—• 2:188 "And eat not up your property among yourselves in vanity, nor seek by it to gain the hearing of the judges that ye may knowingly devour a portion of the property of other wrongfully." 4:29 "O ye who believe! squander not your wealth among yourselves in vanity, except it be a trade by mutual consent, and kill not your selves. Le! Allah is ever Merciful unto you." He submitted that these verses not only prohibits, persons but also embody similar restrictions or prohibition against the State. In this connection he referred to Tafseer' Almanar by Allama Rasheed Raza and Islami Riyasat by Maulana Ameen Ahsan Islani. He also referred to the verse: "do justice it is very near piety" The language of these verses demonstrates that they do not deal with the relation of citizens and the State except to the extent that the property of others should not be interfered except in accordance with law, which means that-the power cannot be exercised mala fide or illegally or for personal aggrandizement even by the Ameer, Sultan, Caliph, Prime Minister or President or by what­ ever name the Head of the State be called. To this very effect is the opinion recorded by Maulana Madoodi as well as Maulana Ameen Ahsan Islahi. The verses do not however, deal with law making, which is necessary to secure the interest of the general public or any thing done in the public interest. This point was considered in Mohammad Ameen v. Islamic Republic of Pakistan (PLD 1981 FSC 23). I observed at pages 65-66:— "The principle of Ghasb on which reliance was placed by the learned counsel for the petitioner is not applicable to acquisition of property by the State for public purpose as distinguished from confiscation by the Imam for personal use. This distinction has already been pointed out on the autho­ rity of Shah Waliullah from Fiqh Omar with regard to the expropriation by Hazrat Omar of land owned by Muslims for use as -grazing ground without payment of any compensation". | It was also held that though in straitened financial circumstances and dire necessity the government has power to confiscate the property without paying compensation, the land should be acquired on payment of full compensation which should be equal to the market value of the land (vide page 66). The Punjab Highway Ordinance provides in its S. 18 for acquisition on payment of compensation. It also provides for payment of compensation (S. 10) in cases where a person having any interest in land proves that his interest is injuriously affected by the imposition of restriction by or under the provi­ sions of Section. 8 or 9. Prohibiting the erection of any building between the building and the Highway by the owners of any interest in land would cer­ tainly amount to encroachment upon their interests. On account of ther estrictions imposed upon the rights of the owners to avail of the lands for building purposes, some damages does ensure to the owners. Both these provisions are very salutary and are also in public interest. In these circumstances the petitioner's objection would have been unexceptionable if no provision had been made for compensation for this partial damage. But we find that Sec­ tion 10 takes steps to remove this objection, and relieve the owners of the injuries which might affect their interest by the imposition of these restrictions. .The petitioner conceded that Section 10(1) does provide satisfactory relief but he submitted that the proviso to sub-section (2) which defines interest in land taken away by the other hand the relief given by one hand by,the main sub- Section. He referred to the fixation of time limit that for the ""-purpose of assessing the damage the interest should have vested in the owner thereof on the day the restrictions come into force. We have not been able to appreciate this argument. The expression interest in land could not have been left undefined. The definition would necessitate B the fixation of point of time when the loss was suffered. Naturally the point of time will be the day, when the restriction came into force. This provision is thus very reasonable. The formula of assessment of compensation given in/sub-fe;tion (4) of Section 10 is also just. It provides that the compensatio/i shall be a sum by which the market value of the interest in the land is reduced as a result of res triction imposed. We are not therefore, able to subscribe to the argument that the proviso does not advance the object of the main sub-Section to which it is attached, It was also argued that the compensation should, be paid before taking possession of any land. This objection obviously cannot relate to the provi­ sion of Section 10 since in that case no property is required to be taken. More­ over the compensation does not automatically follow the imposition of restric­ tions but can be paid only on proof of injuries to the interest' in land suffered or likely to be suffered by the person having such interest. The objection in .regard to payment of compensation prior to possession is riot warranted for another reason. The Land Acquisition Act does pro­ vide for delivery of possession after assessment of fair compensation, which means that payment remains only a formal affair. But sometimes delay caused in the process of assessment may cause much greater harm to the public interest. In such cases delivery of possession must be given precedence over assessment of payment of compensation. There are instances during the period of the Caliphs when the houses and properties of the others had to be expropriated for widening the premises of the mosque and compensation was paid later. These instances are given in PLD 1981 FSC Mohammad Ameen v. Islamic Republic of Pakistan page 25 (pages 58). Another instance of confiscation is of land of Najran tribe after their expulsion from Yamen to Iraq under order of Hazrat Omar. In this case they were compensated for the land so confis­ cated by allotment of land in Iraq. We asked the petitioner whether he had gone through the whole Ordinance and could point out any other provisions which may be repugnant to the Holy Quran and the Sunnah of the Holy Prophet but he stated that he had not gone through the rest of the Ordinance from this point of view. We have however, gone through it and reproduced its summary in this Judgment with this view. It is clear that the other provisions are merely regulatory about which the power of the State is not questionable under shafiah. We do not find any portion of law to be repugnant to the Holy Quran and the Sunnah and dismiss the petition. (TQM) Petition dismissed.

PL J 1983 FSC 153 PL J 1983 FSC 153 (Appellate Jurisdiction) Present: aftab hussain, C.J. & malik ghulam ali, J ALI RAZA SHAH—Appellant versus THE STATE—Respondent Criminal Appeal No. 105/L of 1982, decided on 28-3-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— ——S. 11—Abducting or inducing moves to compel for marriage— Offence of— Held: Intention of compelling girl to marry any person against her will or forcing or seducing her to illicit intercourse to be pre­ sumed when stranger takes away young girl to some distance and gets rid of her minor sister in way. [P. 156] B (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— S. 11-lead with Constitution of Pakistan, 1973—Art. 203-DD—Abduc­ ting or inducing woman to compel for marriage—Offence of—Sentence for—Federal Shariat Court—Revisional jurisdiction of—Exercise of— .Additional Sessions Judge sentencing appellant to 7 years R. I. only for committing offence under S. 11— Held: Statutory sentence for offence being life imprisonment, sentence to be enhenced in exercise of revisional jurisdiction of court. [P. 156] C (A/tab Hussain, C.J.) (iii) Criminal Trial—

Recovery—Witnesses of locality-Recovery witnesses having no grudge against appellant and their evidence also straightforward and con­ vincing— Held: Mere fact of witnesses from locality having not been made recovery witnesses to be of no consequence. [P. 156] A Rana Abdul Majid, Advocate for Appellant. Sh. Ejaz Ali, Advocate for the State. Date of hearing: 28-3-1983. judgment Aftab Hussain, C. J. —This matter was first heard by a Single Bench, but since a notice for enhancement of sentence under Section 11 of the Zina (Enforcement of Hadood) Ordinance, 1979 was issued, it was considered advisable that it should, be heard by a Division Bench. In these circums­ tances the-case was heard by this Bench. This is an appeal by Ali Raza Shah convict against his conviction under Sections 11 and 10(3) of the above Ordinance and his sentence for the first offence to 7 years R.I, 10 stripes and a fine of Rs. 5,000/- (In default two years R.I) and for the second offence to 7 years' R.I, and 10 stripes. Both the sentences of imprisonment were directed to run concurrently vide order of the learned Addi­ tional Sessions Judge, Lahore dated 31st October, 1982. The learned Additional Sessions Judge acquitted Waheed, co-accused but convicted Ali Raza Shah on both counts. The prosecution case is that on the 9th of May, 1981 Mst. Taslim, P.W. 3 aged 15/16 years and Mst. Maryam, P.W. 4 aged 10 years daughters of Mehanga, P.W. 2 went in a bus to Kasur from Lahore. When the bus reached Kahna, Maryam asked Tasleem to arrange for her something to eat. Both of them wen" to a nearby place where they took nan-haleem. In the meanwhile, the bus in which they had travelled left,for Kasur. They boarded another bus. When they reached Kasur and wanted to alight from it, the Cleaner of the bus stopped them under threat from doing so. The bus was then brought back to Lahore at the bus stand Bad ami Bagh at about 10/11 p.m. Here again they were stopped from leaving the bus. The Cleaner placed a matress (Gadda) on the floor of the bus and committed Zina-bil-jabr with Mst. Taslim, P.W. 3. At that time the Driver called Shah came there. He also committed zina-biljabr with Taslim after which he took her and Maryam both in a Rikshaw to his sister's house in Gulberg, where too he-committed zina-bil-jabr with Taslim. In the morning, he again took the two girls in a Rikshaw. When he reached Sodiwal quarters, Multan Road, Lahore, where these tw« girls resided, he dropped Mst. Maryam and took Taslim to his house at Pattoki, where also he is said to have committed sexual intercourse with her. Mst. Maryam informed her father about this incident. He made an appli­ cation to the Martial Law Authorities on the 10th'May, 1981. The officer on duty directed the Police to register the case and bring the offenders to book. In these circumstances the First Information Report was recorded at Police Sta­ tion Badami Bagh, Lahore, on the llth of May, 1981. The same day Akbar Ali, ASI, P.W. 7 made a search for the two accused persons in the company inter alia of Mst. Maryam, Mohammad Siddiq, P.W. 6,'a friend of her family, and Mehanga P.W. 2. Mst. Maryam identified Ali Raza Shah, appellant, and pointed out to­ wards him on which he was arrested immediately. Waheed could not be • arrested till the 14th when his application for bail before arrest was dismissed. On the interrogation of Ali Raza Shah it was found that Mst. Taslim was at his house. He led the police party to Pattoki, where from his house was recovered Mst. Taslim in the presence of Mehanga, P.W. 2, and Mohammad Siddique, P.W. 6, both of whom are the recovery witnesses in this case. Mst. Taslim was medically examined by lady Doctor Razia Begum, WMO, P.W. 1, who found, her to be 16 years of age and observed that there were no marks of violence on her body, her hymen had got two old partial tears, one orrthe right side and the other on the left, and the vagina admitted two fingers easily. In her opinion she had been subjected to intercourse and it was possible that the first intercourse with her might have taken place 15 days or a month earlier or even more. She took two vaginal swabs which she sent to the Chemi­ cal Examiner for detection of the semen. The report of the Chemical Examiner is positive, since he found these swabs stained with semen. Mst. Taslim was also examined under Section 164 Cr.P.C by a learned Ma­ gistrate on the 19th of May, 1982. We have been taken through the voluminous record of this case' by the learned counsel for the appellant. The record has become voluminous on account of almost irrelevant long cross-examination by the learned counsel for Waheed. In our opinion, the charge under Section 10(3) is not established against the appellant beyond any reasonable doubt. In her statement under Section 164 Cr.P.C.. which was recorded after a week of her recovery, Mst. Taslim" did not allege that she was subjected to sexual intercourse by Ali Raza Shah either at the bus stand or at his sister's house or at his own house. Her allegation regarding the commission of this offence was against .Waheed only. As re­ gards Ali Raza Shah, she had. only charged him with taking her away to his sister's house from the bus stand, then to the Sodiwal Quarters where Maryam was left and then to Paitoki, where she remained till her recovery. Mst. Maryam also did not support the story regarding the commission of rape by Ali Raza Shah in the bus. There is no doubt that she was subjected to sexual intercourse which is established by the report of the Chemical Examiner on the vaginal swabs taken by the Lady Doctor. This act might therefore have been committed by Waheed, and not by Ali Raza Shah. The only question, now, is whether the evidence is sufficient for the convic­ tion of Ali Raza Shah under Section 11 of the Oidinance. In support of this plea there is the evidence of Mst. Maryam, the evidence of Mst. Taslim and the evidence of the latter's recovery from the house of Ali Raza Shah at Pattoki, which consists of the statement of Mst. Taslim herself, Mehanga, Mohammad Siddique and Akbar Ali A.S.I. It is clear from the record that there is no enmity between the appellant and the police or the appellant and the complainant party. In fact the appel­ lant and the complainant.party were not known to each other at all. In these circumstances, the charge about the abduction of Mst. Taslim by Ali Raza Shah is proved beyond any shadow of doubt. The learned counsel for the appellant argued that Mst. Taslim was not recovered from Pattoki and in this connection he referred to the statements of the prosecution witnesses to the effect that the persons of the same locality had gathered at the spot but they were not made witnesses of the recovery, despite the fact that some questions were put to them by the Investigating Officer. It was also urged that the Investigating Officer did neither inform the Puttoki Police nor take their assistance for the recovery. None of these arguments has any force. The mere fact that witnesses from the locality were not made recovery witnesses is not of any consequence since the evidence of Mehanga and Siddique, who have no grudge against the appellant, and did not even know him is straight-forward enough to convince us about the correctness of their versions. Ali Raza Shah, appellant examined two witnesses in defence i.e., Ashiq Hussain, D.W. 3 and Ghafur Ahmad, D.W. 4, Both of whom hail from Pattoki, and they merely gave a negative statement that the girl was not recovered from the house of Ali Raza Shah, who was a man of good character. Such evidence is of no avail in the face of the positive evidence which there is no reason to disbelieve. The learned counsel lastly argued that this could be merely a case under Section 16 which makes only taking away or enticting away of a female, an offence. He relied upon that portion of the statement of Mst. Maryam, in which she said that Ali Raza had promised to rescue them. Clearly the conduct of Ali Raza proved this pretext as false. This was a deception played by him upon Mst. Tasleem since instead of taking these two girls to their house at Sodiwal Quarters, Multan Road, he took them first to Gulberg, where they were lodged in his sister's house for a night. Next morning, he undoubtedly took them towards Sodiwal Quarters, but this was only to get rid of Mst. Maryam who was left near her house. He then sped away with Mst. Taslim and took her to Pattoki. From this it is established that his promise to rescue them was merely to deceive them so that they may willingly accompany him. His intention throughout was to abduct Mst. Taslim. This abduction is covered by the definition of Section 11. It is established c n the record that the tw o girls were being taken by the appellant at his sweet will. A stranger as he was he must have advanced same, excuse or made some promise to them to keep them quiet. The learned counsel submitted that the intention which is necessary to prove the offence under Section 11 is not proved in the present case. The intention should be either to compel a girl to marry any person against her will or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercou -se. Either of these intentions can be presumed when a stranger takes away a young girl to such a distance and gets rid of her minor sister in the way. We agree with the learned Additional Sessions Judge that the case under Section 11 is established beyond any possibility of doubt against the appellant. The learned. Additional Sessions Judge, sentenced the appellant to 7 years Rf.l. oily, although the sentence for this offence is life imprisonment, and whipping up to 30 stripes, and. also fine. We have held in several cases that the sentence of life imprisonment can­ not be reduced. It was for this reason that a notice to show cause why in exercise of Revisional Jurisdiction the sentence should not be enhanced, was served upon the appellant. We maintain the conviction of appellant under Section 11, and sentence him to life imprisonment, 30 stripes and Rs. 5,000/- as fine. In default of payment of fine he shall under go further R.I. for one year. (TQM) Science enhanced.

P L J 1983 FSC 157 P L J 1983 FSC 157 (Appellate Jurisdiction) Present: aftab hussain, C.J. & malik ghulam ali, J HABIBULLAH and Another—Appellant versus THE STATE—Respondent - Criminal Appeal No. 126/L of 1982, decided on 29-3-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VH of 1979)—

Ss. 11 & 16—Kidnapping, abducting or enticing away of woman—• Offence of—Abductee's conduct in going quietly and travelling in bus with appellants proving her having accompanied them with consent— Held: In absence of independent evidence, no presumption to be drawn about her abduction, kidnapping or being taken away or enticed away. [P. 159] A (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VO of 1979)—

S. 11—Kidnapping of woman—Offence of—"Abductee" found on msdical examinition to be pubsrt having had sexual intercourse even be­ fore date of commission of offence— Held: Possibility of her being over 16 years not t> be excluded in which case charge of kidnapping not to be sustained. [P. 160] B (iii) Offence of Zina (Enforcement of Hadood) Ordinance (VH of 1979)— S.ll-Abduction of woman—Offence of~"Abducee" living with person not related to her within prohibited degrees and never appointed guardian by District Judge— Held: No case of abduction or kidnapping made out. (P. 160) C Mohammadan Law by D.F. Mulla (1955 Edn.) Para 355 ref. (iv) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— Ss. 11 & 16—Woman—Abduction of—Offence of—"Abductee "not only trying to involve appellant in false case but also appearing to be woman of loose character— Held: In absence of corroboration, benefit of doubt to be given to appellant. [P. 160] D & E Malik Manzoor Ahmad Mission, Advocate for Appellants. Khawaja Muhammad Asghar, Advocate for the State. Date of hearing: 29-3-1983. judgment Aftab Hussain, C. J. —Habibullah and Bashir were conviUf-i uader Section 11 of the Offecen of Zina (Enforcement of Hudood) Oroiuance, 1979 for the abduction of Mst. Sakina, P.W. 9 and each of them was sentenced to life imprisonment, 10 stripes and Rs. 1,000/- fine (in default one year R.I.). Habibullah in addition was convicted under Section 10(3) of the Ordinance and was sentenced to ten years, R.I. and 30 stripes. 2. Hence this appeal. 3 The prosecution version in the First Information Report is that Mst Sakina is daughter of Allah Diwaya who died about 15 to 20 years ago and h^^ntLr re married and gave the custody of the child to Allah Wasaya, PW fTfirsi cousfn oi Allh Diwaya deceased. Habibullah and Bashir . Ahmad'both real brothers are the sons of the maternal uncle of Allah Wasaya HaSbullah used to visit the house of Allah Wasaya and developed ilhcit En with Mst. Sakina who was less than 14 years of age. During the night between 29th and 30th of May, 1981, Mst. Sakma disappeared from the house. The complainant Allah Wasaya searched her and ultimately was informed b> Shah Sammad, P.W. 5 and Mohammad Aslam, P.W. 6 that they had seen Ssakiia going with Habibullah appellant in a bus towards Bahawaipur. 4 The irst Information Report of this occurrence was recorded on the 1st of June, 1981 at about 10-30 p.m. in Police Station, Khanpur. 5 The Police came to know on the 3rd of June, 1981 that Mst. Sakina was in Darul Aman, Bahawalpur and had been sent there by order of a Magis- Sate The Police recovered Mst. Sakina from there and got her medically ex­ amined by Dr Munira Raoof, P.W. 1, who stated that her hymen was torn cTmoktelY Taggs were old and healed. Vagina admitted the passage of twSgers loose She could not obtain the vaginal swabs since she was having menstural bleeding. arrest the two appellants were medically examined. It bSa'h by Dr. Mohammad Aftab Iqbal, P.W. 2, that was tow tha't he was unable to perform sexual intercourse. Some wound was found on the leg of Bashir. 7 Allah Wasava P W 4 supported the story given in the First Informa- +• p J«J He admitted that he was first cousin of Allah Diwaya father of SX Sakma He dffidShat Mst. Sakina was in the custody of Allah Wasaya Sothi of AUah Diwaya who had handed her over to Habibullah after receiving brother ot Allan ui way promised to Habibullah that he wS S pe e Smhis f XI Smony after settling the dispute with the comp.a,- nant who was not agreeable to this marriage. 8 Shah- Mohammad claimed to have seen both the appellants accom- - „ m? Sakma He is a chance witness since he stated that his tractor panymg Mst • Sakma. He is a cnan e Workshop of Akbar in Kh S ai°To°wn ^neafthe Bus ffihan'pu, He denied that he entertained any grudge towards the appellants. Adam PW 6 made a similar statement about seeing acrmpanyl^ Tthe'^o apSnts and boarding the bus for Baha- P T s Resident of the same Village as Allah Wasaya. He has not present ld°da, Khanpur and thus he is-also a chance witness. 10. It is not necessary to refer to the evidence of Barkat Ah, P.W. 7. His statement is based on hearsay mitted Zina-biPjabr with her while Bashir left their company. Habibullah then took her out of the kothi. Bashir Ahmad also arrived there. They then boarded the bus and took her to Bahawalpur. There they took her to the house of some Advocate from where she was taken to the Court permises and was produced before a Magistrate who recorded her statement, whereafter, he sent her to Darul Aman. The Police recovered her from Darul Aman and got her examined medically. 12. Abdul Sattar, Secretary, Union Council, P.W. 8 proved a copy of the birth certificate of Mst. Sakina. He stated that the date of birth as en­ tered in the register was 12-6-1967 but the entry was made on the 12th of March, 1970. 13. The last witness is, the Investigating Officer, Abdul Hamid, P.W. 10. 14. Bashir denied this participation in this affair and merely stated that he was involved on account of suspicion. Habibullah denied the charge and in answer to the question, whether he had taken Mst. Sakina to Bahawal­ pur, he stated that it was incorrect; however, he had gone to Bahawalpur after his Nikah was performed with Mst. Sakina. He was asked about the story of his taking Mst. Saking. to a Magistrate. He answered as follows: "We were arrested from Khanpur by the Police and were taken to Bahawalpur where Mst. Sakina was produced before the Magistrate by the Police itself and she was sent to Darul Aman." In answer to question No. 6, as to why this case against him, he said: "Mst. Sakina lived with Allah Bachaya brother of Allah Diwaya deceased. Allah Bachaya gave Mst. Sakina to me. But Allah Wasaya complainant did not agree to marriage and therefore he brought out a false case against me. I am a duly wedded husband of Mst. Sakina." 15. The first question is whether the story of Mst. Sakina about her ab­ duction by use of force is correct. We are of the view that the story given by her has the germs of contradictions. It is stated that she was lifted from her bed by these two persons who threatened her with knife, and yet instead of se­ curing that she got no opportunity to flee she was made to sit on the carrier of the cycle behind them, while Habibullah sat on the front rod. If any force was used, in the natural course of events, Mst. Sakina should have been made to sijt on the front rod and Habibullah on the carrier of the cycle. Her subsequent conduct in going quietly and travelling in a bus with the appellant also proves that she was not being taken by them but she was accompanying them with her own consent. In these circumstances,, no presumption can be drawn about her abduction, kidnapping or being taken away or enticed away in the absence of independent evidence to prove the ingredients of Sections 11 or 16. 16. The story as given by two chance witnesses namely P.W. 5, Shah Mohammad and P.W. 6, Mohammad Aslam is not convincing but even that story does not advance the prosecution case and cannot prove the charge under Section 11 or even under Section 16 of the Ordinance. 17. Mst. Sakina is said to be less than 14 years of age, on the date of occurrence and this is proved by the birth entry which was proved by P.W. 8, Abdul Sattar. This date is contrary to the version given by Allah Wasaya himself who stated that the father of Mst. Sakina had died 15/20 years before', which means that Mst. Sakina could not be, by any stretch of imagination, 14 years old. The birth entry is also doubtful since it was made m 1970 regarding a birth of 1967 and there is no explanation for this late entry. 18. In these circumstances, particularly when Mst. Sakina was found on medical examination to be a pubert who must have had sexual intercourse even before the date of the alleged commission of offence, the possibility cannot be excluded that she might be over 16 years of age in which case the charge of kidnapping cannot be sustained only on the basis of her age. 19. If it is assumed that Mst. Sakina was about 14 only, she cannot be said to have been removed from guardianship of a guardian. She is stated to have been living with Allah Wasaya who is not related to her within the prohibited degree, but is the first cousin of her father., He is not covered by the list of guardians in para 355 of Mohammedan Law by D.F. Mulla (1955 Edition) He cannot be a guardian unless he was appointed so by the District Judge. No case of abduction, or kidnapping is therefore, made out. The appellants are entitled to be acquitted of that charge. 20. The next question is whether there is any evidence against Habibullah as regards the charge of Zina. If Zina was ever comniitted by Habibullah on Mst. Sakina, for the reasons already given, it is difficult to believe that it was bit Jabr. However, there is no evidence except that of Mst. Sakina involving Habibullah. Habibullah had no doubt claimed that she was his wife but he nowehere said that he had. ever lived with her as a husband. It was for the prosecution to prove by satisfactory evidence that he had really committed Zina with Mst. Sakina. 21. According to established law, Mst. Sakina's evidence would require corroboration since she had not only tried to involve the appellant in a false case of abduction but she also appears to be a woman of loose character. Though she was medically examined within four days of the alleged abduction, it was found by the lady Doctor that the vagina was completely torn and old taggs were there which were healed. The time between alleged offence and the medical examination is too short to allow the healing if the intercourse was a recent affair. 22. The coi-roboration could have been obtained if the vaginal swabs had been taken and had been proved to be-,«taine~d with semens but that evidence is also not forthcoming. The benefit of' doubt shall have to be given to Habibullah. 23. The appeal is therefore, accepted, the conviction and sentence of both the appellants are set-aside and they are acquitted. They shall be released forthwith if not required in any other case. (TQM) Appeal accepted.

P L J 1983 FSC 160 P L J 1983 FSC 160 (Appellate Jurisdiction) Present: Ch. muhammad siddiq, J MUMTAZ KHAN—Appellant versus THE STATE—Respondent Criminal Appeal No. 88/1 of 1982, decided on 22-12-1982. (i) Evidence Act (I of 1872)— —-—S. 33—Evidence given in judicial proceedings—Relevancy of—Held: Statement of witness recorded in proceedings coram non judice not to be used in subsequent trial of accused by competent court. [P. 166] A (ii) Evidence Act (I of 1872)—

S. 33-Court lacking jurisdiction—Proceedings before—Witness—State ment recorded in—Inadmissibility in evidence of— Held: Proceedings before court lacking jurisdiction being no "judicial proceedings", state­ ment of witness recorded before such court to be inadmissible in evidence. [P. 167] B (iii) Evidence Act (I of 1872)—

S. 33—Inability of witness to give evidence —Proof of~^Htld: Provi­ sions of section being mandatory, strict proof to be given (i n crimi ;aal cases) about inability or incapacity of witness to give evidence a-id even consent . of accused person or his counsel not to cure such ir, egularity—Held further: Court before transferring statement recorded b\ another co\irt to satisfy itself regarding reasonable and diligent search, having been made to make witness available—Prosecution miserably failing in case to prove "unreasonable delay" or"expense" to produce witness before trial ourt— Held: Statement of .witness recorded before Magistrate not to be legally transferred to sessions file and not to be used as corroboration against appellant. [P. 169] D, F, G & H 72 IA 270; PLD 1952 FC 63 & PLD 1958 SC & 392 ref. (iv) Evidence Act (I of 1872)—

S. 33—Inability of witness to give evidence—Proof of—Held: In civil case any party may waive proof about inability or incapacity of witness to give evidence. [P. 169] E (v) Evidence Act (I of 1872)—

S. 32—Statement of persons who cannot be found—Relevancy of— Held: Medico legal report being statement prepared by doctor in dis­ charge of his professional duty, same to be admitted into evidence— Held further: Such report conducted by doctor in his absence not to be relied upon unless his attendance be procured not without un­reasonable delay or expense. [P. 169] / 1970 SCMR 405 rel . (vi) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 12—Kidnapping person in order to subject person to. Unnatural lust—Offence of—Statement of victim contradicted on material points by complainant and other "circumstances of case-— Held: Solitary statement of victim in circumstances not to be sufficient to maintain conviction of appellant. [P. 169] Jf (vii) Accused—

Rights of—Witness—Examination of before court trying case— Held: Accused to have right to demand that witness deposing against him should be examined before court trying case as better opinion as to reliability of witness to be formed by observing demeanour of such witness by court. [P. 167] C Sardar Muhammad Ishaque Khan, Advocate for Appellant. m. . Muhumwad Aslam Uns, Advocate for the State, Date of hearing: 4-10-1982. According to the prosecution version the brief facts of the case are that Muhammad Tufail, complainant, belonged to village Basal, District Attock. However, since 1966 he was employed as a driver in Habib Bank Ltd., Lahore . At the relevant time his son Muhammad Ali PW, was also residing with him at Lahore as he was studying in the 9th class in Iqbal High School , Ghari Shaho, Lahore . The other family members of the complainant were, however, residing in his native village Basal. Mumtaz Khan, appellant also belonged to the same village Basal but was working as a driver of oil tanker to transport diesel or petroleum from Karachi to up country. During the days of occur­ rence the complainant, his son Muhammad Ali PW, and the appellant had come to their native village Basal to celebrate Eld-ul-Azha. The parties belonged to the same brotherhood and are also remotely related. It is alleged that on 4-11-1979 the appellant came across Muhammad Ali (PW) and offered him a lift up to Lahore. Since Muhammad Ali wanted to go back to Lahore, he accepted the lift offered by the accused who was taking his empty oil tanker to Karachi via Lahore. They smarted their journey from Basal at 4 P.M. When they reached Lahore sometime during the night, Muhammad Ali PW asked the accused to drop him at Band Road but the latter refused, to do so and continued the journey towards Multan after threatening Muhammad Ali (PW) that if he insisted to discontinue the journey he would kill him. They reached Multan during the same night. The accused stopped his vehicle at an unfrequented place on the road leading to Karachi and committed sodomy on Muhammad Ali after giving him a beating. Thereafter they proceeded . to Karachi where at the Oil Depot the accused filled up his tanker. Muhammad Ali PW was subjected to sodomy by the accused at Karachi also. On their return journey when the tanker reached Mianwali in the morning on 13-11-1979 it developed some mechanical defect. When the accused went to. call some Mistari, Muhammad Ali PW slipped away and boarded a Bus and returned to his village Basal. He related the whole story to his mother who further conveyed the same to his father Muhammad Tufail complainant, who on 14-1V1979 submitted a written application Ex. PA to the local sub-Martial Law Administrator. On 15-11-1979 the Officer Incharge of the complaint cell endorsed the following remarks on the said application:— "Concerned Police Station to register the case and produce the challan in ASP for trial." On 22-3-1980 the following remarks were endorsed on the said complaint:—• "Case be processed, in Civil Court" The said complaint was sent to Police Station Find Sultani where formal FIR Ex. PA/1 was recorded, by H.C. Siad Shah (PW. 3). ASI Muhammad Banaras (PW. 4) arrested, the accused on 1-3-1980 and got him medically examined for his sexual fitness. The S.H.O, Zaheer Ahmad (PW. 5) is the Investigation Officer in this case, who after the completion of the investigation, challaned Mumtaz Khan, appellant under Sections 367/377 PPC. This challan was submitted, in the Court of Mr. Muhammad Akmal Qureshi, Civil Judge 1st Class exercising powers under Section 30 of the Code of Criminal Procedure, Pindi Gheb. 2. In support of its case the prosecution produced the following witnesses before the learned Magistrate:— P.W. 1 Muhammad Tufail P.W. 2 Muhammad Ali P.W. 3 H.C. Said Shah P.W. 4 A.S.I. Muhammad Banaras P.W. 5-Dr. Faqir Muhammad Khan (P.M. Khan) P.W. 6 S.H.O. Zaheer Ahmad. 3. In defence the _accused produced certain documents relating to Muhammad Ali's birth, school leaving certificates (Exs. PB, PC). The learned Magistrate vide his judgment dated 2-12-1980 came to the conclusion that as no offence or act under Section 367 or 377 PPC had been committed within the local limits of the jurisdiction of that Court by the accused, therefore, the said offences could not be inquired into and tried by that Court in any manner. It was further observed that the prosecution had wrongly tried to prosecute the accused within the local limits of jurisdiction of that Court. Accordingly the learned Magistrate relieved the accused for the time being who might be legally prosecuted by the prosecution within the local limits of which Court the offences were committed by the accused. Against this order dated 2-12-1980 two revision petitions were filed before the Sessions Judge, Attock-one by the public prosecutor and the other by Muhammad Tufail, complainant. Vide order dated 18-8-1981, the learned Sessions Judge, accepted both the revision petitions, set aside the impugned order of the Magistrate dated 2-12-1980 alongwith entire proceedings taken in the case by the said Magistrate and directed S.H.O. P.S., Pind Sultani for sending up this case to the Court of Sessions through Ilaqa Magistrate because prima-facie it was a case under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) which offence was exclusively triable by a Court of Sessions. It was also held by the learned Sessions Judge that the impugned order of the learned Magistrate dated 2-12-1980 was not tenable at law not only on the ground that the Magistrate at Pindi Ghab did not lack territorial jurisdiction but also for the reason that he had no ordinary jurisdic­ tion to try that case as its trial was within the exclusive competence of the Sessions Court, Attock. Accordingly the Police sent up the case to the Court of Sessions through the Ilaqa Magistrate. Mumtiz Khan accused was sum­moned by the Sessions Judge to face the trial. There is nothing on the record to show that the earlier order of the learned Sessions Judge dated 18-8-1981 was challenged before any competent Court or forum. 5. Before the Court of Sessions the prosecution produced 7 witnesses. Muhammad Tufail, complainant appeared as P.W. 1. He is the father of the victim. He made an application Ex. PA to the Local Martial Law Authority at Attock and the same was ultimately forwarded to Police Station Pind Sultani to register a case. Muhammad Ali (PW. 2) has narrated how he went with the appellant in his oil tanker up to Lahore and then was further taken to Multan and then to Karachi and was subjected to sodomy during this journey. According to him on their return journey on 13-11-1979 near Mianwali the oil tanker broke down and when the appellant went to call some Mistari, Muhammad Ali PW slipped away and boarded a Bus and returned to his village Basal where he narrated the occurrence to his mother who further conveyed the same to his father Muhammad Tufail, complainant. On the receipt of Ex. PA from the Martial Law Authority a formal FIR Ex. PA/1 was registered by M.H.C. Said Sbah (PW. 3). ASI Muhammad Banaras (P.W. 4) arrested the accused on 1-3-1980 and got him medically examined. SHO Zaheer Ahmad (PW. 5) partly investigated this case and recorded the statement of Muhammad Ali PW and submitted the challan. Constable Muhammad Aslam (PW. 6) was entrusted the summons Ex. PD for the service of doctor Faqir Muhammad Khan (PW). On 17-6-1982 he went to Lahore to the house of the said Doctor who was not present. The son of the doctor came out of his house and told him that the doctor had gone to Quetta where the sister of the doctor had met with an accident. The son of the doctor gave a note to this effect duly signed by him. Vide order dated 19-6-1982 the learned Sessions Judge observed that since doctor P.M. Khan had retired from Govt Service, could not be traced and his attendance could not be procured without unreason­ able delay and expense as he originally belonged to Baluchistan. The Court therefore, ordered that a Compounder DHQ, Hospital, who was acquainted with the hand-writing of the said doctor be summoned to prove the MLR by way of secondary evidence under Section 32 of the Evidence Act and adjourned the case for 21-6-1982. Accordingly Ghulam Hussain a Compounder DHQ, Hospital Attock (PW. 7) appeared as a witness and stated that Doctor P.M. Khan had remained posted as Medical Officer DHQ, Hospital for about 5 years and he had been working with him and therefore was acquainted with his hand-writing and signatures. After seeing MLR dated 14-11-1979 in res­ pect of Muhammad All son of Muhammad Tufail, the witness stated that the report was in the hand of doctor P.M. Khan and was signed by him. On the said date doctor was working as M.O. in D.H.Q. Hospital. The witness had brought the original MLR as well which he produce! for inspection of the Cou't. Ghulam Hussain Compounder further stated that he had seen the statement in Urdu (Ex. P.p.) of doctor P.M. Khan dated 2-10-1980 recorded by Magistrate Section 30, Pindi Gheb in the case State v. Mumtaz Khan which bore the signatures of the doctor (Ex. PF/1). and he identified the signatures of the doctor (Ex. PF!1). The statement of the doctor was also recorded in English (Ex. PF/2) which also bore his signatures. 7. The appellant in his statement recorded under Section 342 Cr. P.C. denied the prosecution allegations. He however admitted that he was a driver of oil tanker and had come to his village Basal for celebration ofEid on 4-11-1979 but he did take his vehicle to Karachi but left the village at 9 P.M. alongwith Azam Khan clearner via Mianwali-MuzafFargarh for Karachi. When asked why this case and why the PWs had deposed against him, he stated as under:— "I am not aware. When on 14-11-1979, I returned to Basal, the father of Muhammad Ali told me that I had been taking away his son and he would prosecute me. I told him that I had not done so." The accused produced in evidence attendance report of Muhammad Ali attached to his school leaving certificate Ex. PC and produced no other defence. 8. The trial Court vide impugned judgment dated 10-7-1082 held that the statement of Muhammad Ali PW coupled with medical evidence proved, the prosecution case beyond any shadow of doubt and consequently found the appellant guilty under Section 12 of the Ordinance and sentenced him to undergo R.I. for 7 years and a fine of Rs. 2,000!-, or in default of payment of fine further R.I. for one year and whipping numbering 20 stripes. 9. Hence this appeal. 10. I have heard at length the counsel for the parties and have also per­ used the entire material available on the record. 11. It is contended by Sardar Muhammad Ishaque Khan, learned counsel for the appellant that the learned Sessions Judge was not legally justified to treat the medical evidence as corroboration of the statement of Muhammad Ali PW. At the relevant time, Doctor P.M. Khan (Doctor Faqir Muhammad Khan) was working as Medical Officer in D.H.Q. Hospital Attock. On 14-11-1979, he had medically examined Muhammad Ali FW and issued medico-legal report Ex. P.E. The doctor had also taken swabs from the anus of the witness and sent them to the office of the Chemical Examiner for analysis alongwith the Shalwar of the witness. Earlier when the case was tried by Mr. Akmal Qureshi, Magistrate with Section 30 powers, this doctor was exa­ mined as P,W. 5 on 2-10-1980. His statement was recorded in English as well as in Urdu (Ex. PF). The signature of the doctor on his statement in Urdu are marked as Ex. PF/1. The doctor also produced a corban copy of his medico-legal report marked as Ex. PW. 5/1 and the sketch of injuries bear­ ing his signatures marked as P.W. 5/A/l. Subsequently during the trial of this case by the learned Sessions Judge, Attock, this doctor had retired from service and had settled in Lahore. The case was fixed for trial before the Sessions Judge on 12-6-1982 when the charge was framed, read and explained to the accused who pleaded not guilty and claimed trial. Accordingly on that day i.e., 12-6-1982 the statement of only one witness could be recorded when the Court time was over and the case was adjourned to next day i.e., 13-6-1982 on which date four more PWs were examined and only doctor F.M. Khan remained to be examined, who was summoned for 19-6-1982. Summons (Ex. PD) were issued to the said doctor and the same were entrusted to Muhammad Aslam, F.C. 413 (PW. 6), for service. The said Muhammad Aslam, F.C. (PW. 6), reached the house of the doctor at Lahore on 17-6-1982. The doctor was not personally present at that time. His son Qaisar Haroon came o"ut of the house and informed the process server i.e., Muhammad Aslam PW that the doctor had gone to Quetta where doctor's sister had met with an acci­dent. The son gave the following note to the process server: — On 19-6-1982 process server Muhammad Aslam (PW. 6) was examined by the trial Court. He made the following statement:— "I was entrusted the summons Ex. PD for the service of Dr. P.M. Khan PW. On 17-6-1982, I went to Lahore to the house of the said doctor who was not present. The son of the doctor came out of his house and told me that he was not available and had gone to Quetta and it is not known as to when he would return. The report on the back of the said summons is Ex. PD/1 which is in my hand." The trial Court on the same day i.e., 19-6-1982 passed the following order and summoned a Compounder from D.H.Q. Hospital, Attock, who was ac­ quainted with the handwriting of the doctor to prove the MLR by way of secon­ dary evidence under Section 32 Evidence Act and adjourned the case for 21-6-1982:— "Presence as before. FC Muhammad. Asjam states that he has not been able to locate Dr. P.M. Khan despite eiiorts. His statement has been recorded. From his report and statement it appears that the doctor who is said to have retired from Govt. service, cannot be traced and his attendance cannot be procured without unreasonable delay and expense as he originally belongs to Baluchistan. Therefore a compounder, DHO. Hospital, who is acquainted with his handwriting, be summoned to prove the MLR by way of secondary evidence u/s. 32 Evidence Act for 21-6-1982." On that day i.e., 21-6-1982 Ghulam Hussain Compounder DHQ. Hospital, Attock was examined as PW. 7. According to this witness doctor P.M. Khan had remained posted as M.O. DHQ, Hospital, Attock for about 5 years and he had been working with him and therefore was acquainted, with his hand­ writing and signatures. After seeing the MLR dated 14-11-1979 in respect of Muhammad Ali son of Muhammad Tufail, this witness stated that the said report was in the hand of doctor P.M. Khan and was signed by him and on that date he was working as M.O. in DHQ. Hospital, Attock. The witness also brought the original MLR for the inspection of the Court. The said report Ex. PF was the correct copy of the original. The witness further de­ posed that the statement of doctor F.M. Khan dated 2-10-1980 recorded by M.S. 30 Pindi Gheb in the case "State v. Mumtaz" also bore the signatures of the said doctor and was marked as PF and. he identified doctor's signatures on its as Ex. PF/1. The statement of the doctor was in Urdu as well as in English and both bore his signatures. 12. It is in the above factual background that we have to determine the admissibility and the legal value of the statement of doctor F.M. Khan re­ corded by Mr. Akmal Qureshi Magistrate Section 30 on 2-10-80 and MLR produced by him before that Court. 13. As mentioned above against the order of Mr. Akmal Qureshi M.S. 30 dated 2-12-1980 two revision petitions were filed before the Sessions Judge, Attock who vide order dated 18-8-1981 accepted both the revision petitions, set aside the order of the Magistrate dated 2-12-1980 alongwith entire pro­ ceedings taken in the case by the said Magistrate because prima-facie it was a case under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordi­ nance, 1979 which offence was exclusively triable by a Court of Sessions. This order of the Sessions Judge dated. 18-8-1981 attained, finality and still holds the field as it was not challenged by any party before a competent Court. Even otherwise it is not denied that the said Offence of Zina (Enforcement of Hudojd) Ordinance No. VII of 1979 came into force on the 12th day of Rabiul Awwal of 1399 Hijri that is 10th day of February 1979 and the present occur­ rence had taken place on 4-11-1979, much after the promulgalion of the said Ordinance. It is further not denied that the offences covered by the said Ordi­ nance are exclusively triable by the Court of Sessions. The result is tha Mr. Akmal Qureshi, Magistrate had no jurisdiction to try the present case. Hence in these circumstances it can safely be held that the earlier proceedings of this case before Mr. Akmal Qureshi, Magistrate, who had no jurisdiction to enter­ tain them, were coram-non-judice and consequently the statement of Dr. P.M. Khan recorded by the said Magistrate in those proceedings, cannot be used, under section 33 of the Evidence Act, in subsequent trial of the accused by the Sessions Judge. It is further held that proceedings before a Court (Mr. Akmal Qureshi, Magistrate) which lacked jurisdiction for any reason to enter­ tain them, cannot be termed as 'judicial proceedings' within the meaning of section 33 of the Evidence Act and consequently the statement of Dr. P.M. Khan recorded in the said proceedings before Mr. Akmal Qureshi, Magistrate, would ba inadmissible in evidence under section 33 of the Evidence Act. Thus viewed from any angle the earlier statement of Dr. P.M. Khan recorded by Mr. Akmal Qureshi Magistrate could not be used in subsequent trial before the Sessions Judge. That statement was clearly inadmissible in evidence and not covered by the provisions of section 33 of the Evidence Act. 14. The statement of Dr. P.M. Khan suffers from another legal infirmity. As mentioned above this doctor was not examined as a witness during the trial by the Sessions Judge but his earlier statement recorded by Mr. Akmal Qureshi, Magistrate has been trans/erred to the Sessions file under Section 33 of the Evidence Act. The question which arises for consideration is whether before producing secondary evidence there was legal justification to dispense with the primary evidence of this doctor or not. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to depose against him, should give his evidence before he Court trying the case/suit which then has the opportunity of seeing that witness and observing his de­ meanour and can thus form a better opinion as to his reliability than is possible from mere reading statement/deposition of that witness. In the infant case doctor P.M. Khan wa"i summoned by the Sessions Judge vide order dated 13-6-1982 when the process server was informed by the son of the doctor that the latter had gone to Quetta to see his sister who met with an accident. The son gave in writing that some other date after the Eid may be given to enable his father to give evidence in the case. However on 19-6-1982, the trial Court without affording any further opportunity to the witness, decided to summon a Compounder from D.H.Q. Hospital who was acquainted with the hand­ writing of the doctor to prove his statement and the MLR by way ijf secon­ dary evidence under Slction 33 of the Evidence Act. It was observed by the learned Sessions Judge in the order dated 19-6-1982 that F.C. Muhammad Aslam had stated that he had not been able to locate Dr. P.M. Khan efforts. From the report and the statement of this witness the Court drew the infer­ ence that the doctor who was said to have been retired from Government service could not be traced and his attendance could not be procured without unreasonable delay and expense as he ordinarily belonged to Baluchistan. According to the larned defence counsel these observations of the learned. Sessions Judge are not borne out by the record.—rather they are contrary to the record. The address of the doctor after his retirement was known and the process server reached the correct residence of the doctor in Lahore but unfortunately on that particular day he was not available at his residence as he had gone to Quetta to see his sister who was involved in some accident. Thus his going to Quetta was temporary and he could easily be available if an­ other opportunity was given to him. Summons were issued only once and the report of the process server reproduced above shows that at that particular moment the doctor was not present at his residence and his son informed the process server that the doctor had gone to Quetta temporarily. Thus the observations of the trial Court in the order dated 19-6-1982 that Dr. P.M. Khan could not be traced and his attendance could not be procured without unreasonable delay or expense as ordinarily he belongs to Baluchistan, was factually incorrect. In fact his whereabouts were known and had been correctly traced out by the process server. As regards the question of "un­ reasonable delay and expense" it is clear that no such unreasonable delay or expense was involved in the case. Their lordships of the Judicial Com­ mittee of the Privy Council in Chainchal Singh's case (72 Indian Appeals 270) have laid down the principle in this behalf in the following words:— "Where it is desired to have recourse to S. 33 of the Evidence Act on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person, or a litigant in a civil suit, that a witness who is to testify against him should give his evidence before the court trying the case, which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the wit­ ness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the condittions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can, if he chooses, waive the proof, but in a criminal case strict proof ought to be given that tfte witness is incapable of giving evidence." 15. The above authority was followed by the Federal Court of Pakistan in Aminul Hague's case reported as PLD 1952 Federal Court 63 by observing as under:— Reliance was placed in this connection on the case of Chainchal Singh v. Emperor [A.I.R. (33) 1946 P.C.I.]. It was held in this case by the Judicial Committee of the Privy Council that when evidence given by a witness in a judicial proceeding is sought to be used under section 33 in a subse­ quent judicial proceeding or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving the evidence that fact must be proved strictly. In a civil case, a party can, if it chooses, waive the proof, but in a criminal case strict proof out to be given that the witness is incapable of giving evidence. This proof must be all the more stringent where the witness was not cross-examined in Committing Magistrate's Court by reason of the accused not having been represented by counsel. The fact that the counsel for the accused consented to the evidence of the witness being read under section 33 of the Sessions Court does not do away with the necessity of the Court being satisfied by proof that the wit­ ness was incapable of giving evidence." 16. The above authority was also followed in PLD 1958 Supreme Court 290 and 392. From the case law cited by the parties on this point it can be laid down that provisions of Section 33 of the Evidence Act are mandatary and in Criminal case strict proof ought to be given about the inability or in-] capacity of the witness and even the consent of an accused person or his counsel cannot caure such irregularity. However in a civil ease a party can, if he chooses, waive the proof in such cases. The court must satisfy itself of the reasonable and diligent search having been made to make the witness avail­ able. Statement of a witness recorded by a Magistrate can be transferred to Sessions file under Section 33 of the Evidence Act only if conditions laid down in that section have been strictly complied with. The expression "incapable of giving evidence" must be proved with strictness. Now let us apply this principle to the facts of the .instant case. From the perusal of the relevant ma­ terial placed on the record it is clear that no satisfactory evidence was led by the prosecution to show that Dr. P.M. Khan could not be found or his attend­ ance could not be procured without unreasonable delay or expense. The prosecution has miserably failed, to prove "unreasonable delay" or "expense" in this case to produce Dr. P.M. Khan before the trial Court. The result is that the statement of doctor P.M. Khan recorded by Mr. Akmal Qureshi, Magistrate on 2-10-80 could not bi legally transferred to the Sessions file and therefore could not be used as corroboration against the appellant. \ 17. As regards the medico-legal report Ex. PE . conducted by doctor P.M. Khan, the prosecution cannot utilize the same against the appellant. This could be admitted into evidence under Section 32 of the Evidence Act being a statement which the doctor had prepared in the discharge of his professional duty. Here also the prosecution faces the same difficulty. Before relying upon the MLR conducted by Doctor P.M. Khan the prosecution had to prove that the said doctor cou'd not b; found or his attendance could not be procured without unreasonible delay or expense. Reliance in this behalf can safely be placed upon the fojldwing observations of their lordships of the Supreme Court in Fazal Muhammad's case reported in 1970 S.C.M.R. 405:— "The post-mortem reports prepared Dr. Muhammad Azhar could be admitted into evidence under section 32(2) of the Evidence Act, being statements which he had prepared in the discharge of his professional v duty, provided it was shown that the witness could not be found or his -attendance could not be procured without unreasonable delay or expense." In the instant case the position of Dr. P.M. Khan is practically the same. I have already held above that the prosecution failed to prove that the attendance of doctor P.M. Khan could not be procured without unreasonable delay or ex­ pense. 18. After excluding from consideration the statement of doctor P.M. Khan and the medico-legal report Ex. P.E: there is no other piece of evidence which can corroborate the statement of Muhammad Ali PW. His solitary K statement in the circumstances of the case, is not sufficient to maintain the conviction of the appellant as he has been contradicted on materiaKpoints by his father Muhammad Tufail, complainant and other circumstances of the case. 19. For the foregoing reasons 1 accept this appeal, set aside the convic­ tion and sentences awarded to Mumtaz Khan, appellant by the trial Court and acquit him of the charge. He shall be released forthwith, if not required in connection with any other case. (TQM) Appeal accepted.

PLJ 1983 FSC 170 PLJ 1983 FSC 170 (Appellate Jurisdiction) Present: aftab hussain, C.J., & malik ghulam Au, J Moulvi HAZOOR BUX—Appellant versus THE STATE—Respondent Criminal Appeal No. 145/1 & 9/K of 1982, decided on 2-4-1983. (i) Pakistan Penal Code (XLV of I860)— ——S. 377—Unnatural offences—Sodomy—Commission of—Evidence- Appraisal of—Victim supporting evidence of three eye-witnesses (all teen aged boys) claiming to have seea actual Commission of offence of sodomy by appellant with him—Appellant also shown to be in habit of kissing boys and punching their cheeks—Medical report explaining injuries on anal cenal being result of commission of sodomy by appel­ lant— Held: Evidsnce of persons having no grudge even if excluded (from consideration), s:atement of victim to be sufficient to prove charge under S. 377 against appellant particularly when sime corroborated by circums­tances of his having been taken away, by appellant to different places for more than 3 weeks. [P. 178] A (If) Criminal Trial— ——Evidence—Tempering; with—Victim taken away by brother of appellant and made to swear statement under threat and promise— Held: Tampering of evidence by such methods not to be allowed. [P. 179J B (iii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— -S. 12 read with Pakistan Penal Code (XLV of I860)—S. 361—Kidnapping in order to subject person to unnatural lust—Offence of—Doctor finding age of victim to be about 15 years— Held: Kidnapping being of male of less than 14 years age if taken away or removed from guardian­ship of guardian, no offence of kidnapping committed in case. [P. 179] C (iv) Offence of Zina (Enforcement of Hadood) Ordinance (VH of 1979)—

S. 12—Abduction in order to subject person to unnatural lust— Offence of—Appellant threatening to publish conduct of victim in case of his failure to run away with him— Held: Mere use of threat not to tantamount to use of force—Held further: There being no element of deceit or force, offence of abduction not committed. [P. 179] D Cr. Cpjjeal No. 145/1 of 1982 Mr. Abdul Shakoor Ptraja, Advocate for Appellant. Cr. Appeal No. 9/K of 188i| Mr. Gul Zaman Khan, Advocate for Appellant. Mr, Abbas Faroogi, Advocate for the in both State appeals. Date of hearing: 2-4-1983. judgment Aftab HusMin, C. J.—By his order dated 23n| of October, 1982, Mr. Muhammad Mujeebullah Siddiqui, Additional Sessions Judge, Karachi, convicted both the appellants under section 12 of the Offence of Zina (Enforce­ ment of Hadood) Ordinance, 1979. and sentenced Moulvi Hazoor Bux to 15 years' R.I. and Rs. l.OOO/- as fine (in default one years' R.I.), and sentenced Moulvi Sabir Ali to five years' R.I. and Rs. 500/- as fine (in default 6 months' R.I.). 2. The learned Additional Sessions Judge also convicted Moulvi Hazoor Bux under Section 377 PPC and sentenced him to 10 years' R.I. and Rs. 1,000/- as fine (in default one year's R.I.). The sentences of imprisonment against Moulvi Hazoor Bux were directed to run concurrently. 3. The prosecution case in short is that Muhammad Sharif, P.W. 6, Haroon, P.W. 2, Ghulam Ghous, P.W. 3, Sarfraz Ahmad, P.W. 4 and several other boys used to learn recitation of the Holy Quran from Moulvi Huzoor Bux, who was Pesh Imam of Masjid Darulsalam, Kroangi, Karachi. Moulvi Huzoor Bux first committed sodomy with Mohammad Sharif, P.W. 6 when he took him to a public meeting and Mohammad Sharif had to stay with him during the night because they had returned quite late from the meeting. He subjected him to carnal intercourse against the order of nature, again one day during the Noon time and was seen while committing this act by Haroon, P.W. 2, Ghulam Ghous, P.W. 3 and Sarfraz Ahmad, P.W. 4. 4. On the 10th of March, 1982 Moulvi Huzoor Bux gave a chit Ex. P. 6 to Sarfraz, P.W. 4 for .delivering the same to Mohammad Sharif, P.W. 6, who at the instance of his father had given up attending the Madrissa of Huzoor Bux. Next day he disappeared from his house. His father Haji Mohammad Hanif, P.W. 1, started his search. He was informed by Abdul Rehmaa, P.W. 7, his wife's relative with whom his relations were strained at the time that he had seen Mohammad Sharif, P.W. 6 going on motorcycle with Moulvi Sabir Ali, appellant. Haji Mohammad Haneef did not believe Abdul Rehman till the discovery of chit Ex. P. 6. On the 17th March Mohammad Haneef's daughter while washing the clothes of Mohammad Sharif found a chit Ex. P. 6 and gave it to her father. After the discovery of this chit, Haji Moham­ mad Haneef, P.W. 1 gave the first information report at the Police Station Korangi against both the appellants in respect of abduction of his son. 5. The police arrested Sabir Ali on the 30th of March, 1982 near a Mosque near Frere Hall. They arrested Huzoor Bux after mid night on the 5tb April, 1982 and recovered Mohammad Sharif, P.W. 6 from his custody in the ffujrak (room) of Madni Mosque in Gulbahar, Gulimar, Karach 1 '. 6. Mohammad Sharif was medkally examined by Dr. Irftfn Qureshi, P.W. 5 on the 5th of April, 1982 at about 12-30 p.m. He found as under:— 1. "He is a young boy of average built. 2. Dress not changed. 3. Stool passed. 4. Bath not taken. 5. No mark of blooa or semen present on body. 6. No mark of blood or semen present on clothes. 7. A t«ar present at 11 O'Clock position 1/2" x 1/10". 8. Healed abrasion 3/4 x 1/3 over right knee joint". In his opnion Mohammad Sharif might have been subjected to sodomy. In cross examination however, he stated that he could not be certain about it, In reply to a court question he said that his uncertainty was due to the fact that a like tear in the anal canal can be caused with the introduction of any hard and blunt substance other than penis. 7. Haji Mohammad Haneef, P.W. 1 explained the circumstances of the disappearance of Mohammad Sharif, the information about Moulvi Sabir Ali taking away Mohammad Sharif on his Motorcycle, the discovery of the Chit Ex. P. 6 and the recovery of Mohammad Sharif. In cross examination it was pat to him whether he raised an objection against the / recitation of Darood-o-Salam after the prayer as was done by the people of the Brailvi school of thought. He denied it and said that no body raised such an objection. 8. Haroon, P.W. 2, Ghulam Ghous, P.W. 3, Sarfraz, P.W. 4, stated that once they had seen Huzoor Bux committing sodomy with Mohammad Sharif. They were waiting for their turn to play cricket and were sitting on a wall near the room of Huzoor Bux. They heard the voice of Mohammad Sharif and went to the above room, door of which was open and saw the appel­ lant Huzoor Bux committing carnal intercourse against the order of nature with Mohammad Sharif. Sarfraz P.W. 4 also stated that Huzoor Bux gave a chit Ex. P. 6 to him, which he delivered to Mohammad Sharif, P.W. 6. This was after eight or nine days after the above incident. They were confronted with their statements before the police in which there was.no mention about the cricket play. 9. Mohammad Sharif, P.W. 6 stated about the incident of commission of offence of sodomy with him by Huzoor Bux one night when he returned with the said appellant after attending a public meeting and about the 2 nd incident of the commission of the same offence which was witnessed by P.W. 2 to P.W. 4. He further stated that on the 10th of March, 1982, Huzoor Bux sent a chit Ex. P. 6 to him through Sarfraz P.W. On receiving the chit he went to see Huzoor Bux at about 4-00 p.m., who asked him to run away with him from Korangi. He did not agree to the suggestion but Huzoor Bux threatened that if h« failed, to do as he was told, he would disclose his misconduct to every body and he would be dishonoured. Due to the fear of disrepute he agreed. Huzoor Bux, appellant sent him to Qasba Colony alongwith Moulvi Sabir Ali, where he stayed for one night in his house. On Friday the appellant came and took him to Hyderabad, where they stayed in a Hotel, where again he com­ mitted Sodomy with him, Then he took him to different places, in the Pro- "Vinces, of Sind and Punjab. During this period he also committed sodomy with hiA twice or thrice. Allah Bux brother of Huzoor Bux, who was search­ ing hiaa met them at Lahore. Huzoor Bux and Mohammad Sharif came alongwith Allah Bux to Karachi where Huzoor Bux stayed in Madni Mosque, Golimar for two days in the Hujrah. The Police arrested Huzoor Bux and recoveied him from there. 10. Abdul Rehman, P.W. 7 and Abdul Rasheed, P.W. 8 are witnesses of Mohammad Sharif being taken away by Moulvi Sabir Ali on his motor cycle. Abdul Rehman also witnessed the arrest of both the .appellants and recovery of Mohammad Sharif. His statement supports fully'the prosecution version in this respect. P.W. 10 Dr. Qaisar Rasool examined Mohammad Sharif for Ws age ad after hw X-ray tests found that he was 15 years old. 11. Akbat Ali, Investigation Officer gave particulars of the arrest of the two appellants on different dates and the recovery of Mohammad Sharif. Question3w«e also put to him about his belief and he stated that he belonged to the Hanafi sect awd sometimes offered prayer behind Huzoor Bux, appel­ lant. 12. The appellant in his own statement denied the charges again^" him. He stated that on the date of arrest and during the time when he is said to have abducted Mohammad Sharif he had been working in Jamia Masjid Darul Salam. He had never fone to Lahore. He was arrested from his house. According tp him the witnesses had deposed falsely against him at the instance of Haji Mohammad Haneef, father of Mohammad Sharif. He gave the details of his defence in reply to a question whether he wanted to say anything else. He said: "I have remained Khateeb for five years in Jamia Masjid Darus Salam Korangi. After one year of my employment religious differences arose. Thereafter an attack was made on me with chruis during last Ramzan, due to reciting of Slat-o-Salam in the Mosque. I, lodged F.I.R. of the incident at Korangi Police Station which was recorded by S.H.O. Abdul Hafiz Qadri. Thereafter 3 to 4 constables used to keep guard at my house for my security. About 5 months ago from today a public meeting took place at Korangi, No. 5\ and during my speech in the meeting an attack was made on me. Police arrived in the meeting and the meeting was dis­ persed. Police left me at my house. Jamia Masjid Darus Salamwhere I was Khateeb is, the "Mosque of Ahl-e-Sunnat, Barelvi Sect. There are three other Mosques in the Mohalla, one is of Shia Sect, other is of Deo-Bandi Sect, and third one is of Akl-e-Hadis Sect. Last yeai I went to perform Umra before Haj. The masjid Management committee granted leave to me for one month. I came'with delay of few days and on my return differences arose bstween me and the Management of ' Mosque. The management demanded my resignation, but the persons offering prayers in Mosque took the stand that they will not leave me. I, therefore, formed a parallel Managing Committee and named that Committee as 'Anjuman-e-Tafraffuz-e-Muqam-e-Mustafa'. I was patron- In-chieF of the Anjman. After forming parallel Committee and Anjuman we started meetings of 'Meeladun Nabi' in the Mohalla for 2 to 4 times in a week. My opponents from th6 other sects used to dislike these activi­ ties, but I continued with my programme. P.Ws Abdur Rehman, Abdur Rashid, Mohammad Bashir, Ghulam Hussain and Ghulam Sarwar were members of the First Managing Committee. The differences bet­ ween me and the first Managing Committee become very serious and they tried very much to oust me, during the Ramzan in the Prayers. From Ramzan in the year 1981, they started throwing stone and filth in my house. They got theft committed twice in my house. One day I had gone to Darbar of Ghazi Abdullah with my children at 9-00 A.M. I reached back at 2-30 P.M. When I reached my house I found the lock of my door broken. I called the acting Imam Mohammad Shafi and Khadim of Mosque Ghulam Murtaza and asked from them and Manzoor Hussain Moazzin of Mosque. They informed me that they saw P.Ws Mohammad Sharif, Umar Draz and Sarfraz breaking lock of my house. I entered my. house and saw that my tape-record was missing, locks of two boxes were broken and some other articles of my family members were also missing. I complained about the matter to parents of these witnesses and told them that if my property was returned I will not lodge F.I.R. with Police, on which they agreed for compromise and kept me on promises for two days^ They did nothing and therefore, I lodged F.I.R. at Police Station against P.W.2 Abdul Rehman, Haji Hanif, Sarfraz, Sharif, Abdul Rasheed v and Ghulam Hussain. Thereafter police came and arrested all of them. It was Tuesday. After Maghrib Prayers they returned from police Station. On Wednesday P, W. Mohammad Sharif suddenly disappeared. About 2 weeks before his disappearance the parents of P.W. Mohammad Sharif had discontinued his learning of Quran with me, because I had beaten him. He was student of school also and he was irregular in attendance at school and madrasa both. The parents of P.W. Mohammad Sharif and otter persons continued search for P.W. Mohammad Sharif and made announcement in the Mosque also about disappearance of Mohammad Sharif. They continuously searched Mohammad Sharif and due to difference with me extended threats to me also and I always showed my ignorance. P.Ws Abdul Rasheed, Ghulam Hussain. Ghulam Sarwar and Abdul Rehman attacked me aftef fsha Prayer. They were annoyed on being levelled as theievss by me,-«I told them that I have implicated them on the saying of Imam, Moazztn aad Khadim of Mosque and. I was prepared for compromise with them. Thereafter they prepared a drama. Theytold me that either I should stop disreputing them or tney will level such allegation against me which I will remember for the whole of my life. One day before my armrest I and the Maballa people heard that P.W. Mohammad Sharif was present at police station. We heard that some one produced P.W. Mohammad Sharif before Nanney Khan, President Jamat-e-Ahi-e-Sumat and Za'cat Ushr Committee, who pro­ duced the boy before Abdul Hafiz Qad'i, S.H.O., Ko/angi, I led Asr prayer on Saturday and thereafter Sub-Inspector Akbar Alt came to me with two constables and told that I was being called by S.H.O. Abdul Hafiz Qadri. I was taken to police station where P.W.s Abdul Rehman, Abdul Rasheed, Ghulam Hussain, "Ghulam Sarwar, Mohammad Bashir, Haji Hanif and P.W. Mohammad Sharif were also present. I was de­ tained in police lock up where co-accused Moulvi Sabir AH was already detafhed. After AfagKrib prayers I was taken out of lockup. Sub Ins­ pector Akbar AH took me in his room and started interrogating me. He insulted me. He gave me beating and told as to why I levelled alle­gation against P.Ws Abdul Rehmtn and others. He further told me as to why I did not leave the mosque on their demand. I told him that since Mohalla people wanted me there, therefore he should not insist on m\ leaving the Mosque. Thereafter Sub-Inspector Akbar Ali started religious discussion with me. I told him to perform his own duty and not to in­ dulge in religious discussion. P.W. Akbar Ali, Sub-Inspector tpld me that he was Ahl-e-Hadis and further told me why I recite salat-o-salam bystanding and why I kiss nails of my thumbs and if I have to do so I should keep some stool on the nail of thumbs and kiss them. On heading this I admonished him. Thereafter he called me again in his room and told that he had taken some bribe from the other party, however he would prepare a report under Section 169 Cr.PC and would release me if I pay Rs. 5.000/- to him. He then informed me that he has turned out aiy father and my family from my house and has put his own lock. My family then went to the house of another Moulvi Sahib who is from my native place Dera Ghazi Khan. I was the;eafter again detained at Police Sta­ tion ftK 10 4ays more. Thereafter Sub-Inspector Akbar recorded F.I.R. against me. Thereafter Sub-Inspector Akbar Ali obtained, my signature on a paper. Thereafter I was sent to Civil Hospital for medical examina­ tion. I am innocent". Moulvi Sabir Ali took a different stand that he was involvd because he advised the members of the Managing Committee of his mosque not to recite salat-o-salam after prayer since it disturbed others who offered prayer there. 14. Two witnesses Mohammad Adrees, D.W. 7 and Mohammad AfzaJ, D.W 8 were produced in defence by Moulvi Sabir All to prove alibi which was never pleaded by him. She witnesses i.e., Abdul Karim D.W. 1, Ghulam Haider, D.W. 2, Ghulam Mustafa, D.W. 3, Mohammad Shaft, D.W. 4, Hafiz Ghulam Mustafa, D.W. 5, a/id Abdul Ghafoor, D.W. 6 were produced by Huzoor Bux, appellant. 15. Abdul'Karim, D.W. 1, Pesh Imam of Madini Masjad, Gulbahar stated that, that mosque was closed at about 9-30 p.m. and no body could enter it latter without his permission. The police did not enter the mosque nor he had seen the victim boy in this case. He was in the mosque when Moulvi Huzoor Bux was arrested. 16. The witness did not make any. mention of the Hujrah from where 4 Huzoor Bux was arrested and Mohammad Sharif was recovered. The it­ ess however, conceded that he never appeared before the police in connection with this case. He also admitted that he

was on visiting and friendly terms with Huzoor Bux, appellant. 17. The other witnesses are of theft in the room of Huzoor Bux; Ghulam Haider, D.W. 2 was a student of Huzoor Bux. He did not remember the period when the theft was committed. According to him most probably it was the month of Rajib. Ghulam Mustafa, D.W. 3 and Hafiz Ghulam Mustafa, D.W. 5 were sitting in the same room with him at a distance of 8 or 10 paces from the house of Huzoor Bux when they heard the voice^ of the breaking of the" door. He saw Sarfraz, Umardraz, Rashid, Shafique, ABdul Rehman, Ghulam Hussain, Sharif, and Hanif standing in front of the house while Sarfraz and Umar Draz were breaking the lock with hammer. They were threatened on the point of pistol by Abdul Rehman (P.W.) when he tried to stop them. Ghulam Hussain was at that time armed with Dagger. After the lock was broken Abdul Renman and Ghulam Hussain sat outside the house of Huzoor Bux while others-entered it and brought out from there trunks, clothes and miscellaneous articles which they took with them. Huzoor Baksh at that time had gone to the tomb of Abdullah Shah Ghazi and he was informed about v_ the occurrence after his return. He went to the house of Abdul Rehman, who told him that his boy had done mischief and the stolen articles would be re­ turned on condition that he (Huzoor Bux) left the mosque next day. When they refused to return the said articles, Huzoor Bux went to the police station at 4.00 p.m. alongwith the witnesses, where he lodged the First Information Report. The police officer noted the names of the offenders and called them through a police constable but in the evening these persons were let out. Next day a police constable came and asked Huzoor Bux to accompany him since he was being called by the Incharge police station. Thereafter he did not return. After the Esha prayer Abdul Rehman and others came to the house of Huzoor Bux and turned out his father and family members including females and children from their house and put their own lock on it. 18. In cross examination he stated that he did not know whether the theft had taken place in the beginning, middle or end of Rajab. Three trunks were stolen. He never went to the police station for the arrest of Huzoor Bux. He said that it was in-correct to suggest that no First Information Report " was lodged about the theft. 19. Ghulam Mustafa P.W. 3, Moazzin of Masjid Darul Salam fixed the time of theft before the month of Rajab. He said that he was in the mosque when he heard commotion. He thus contradicted D.W. 2, who had said Ghulam Mustafa was with him in the same room. He saw Abdul Rehman, Sarfraz, Sharif, Ghulam Hussain and Umar Draz taking away house hold articles but did not remember what articles were stolen. He stated m cross examination that Huzoor Bux had gone to the tomb of Abdullah Shah Ghazi before Rajab. Thus he contradicted D.W. 2 in respect of time of theft. 20. Mohammad Shan, Pesh Imam of'Masjad Madni, Nai Abadi, new Karachi stated that he worked as Naib Imam in Jamia Masjid Darul Salam, There were dispute on the recitation of Salat-o-Salam among the people but he did not know the details. According to him, Ghulam Hussain, Abdul Rashid, Abdul Rehman and Haneef attacked Huzoor Bux twice in his presence. "They turned Huzoor Bux out of the mosque but he again occupied the post of Imam. Then he proceeded to give the details of theft. He said when he reached alongwith Ghulam Haider, D.W. 2 at the place of occurrence, the lock had already been broken. It may be recalled that Ghulam Haider claimed to have seen the breaking of lock. The witness introduced a police constable also among the offenders and said that Abdul Rehman and one constable were standing outside the house. He added a tape recorder and an umbrella to the details of stolen articles as given by Ghulam Haider, D.W. 2. Regarding the First In­ formation Report of theft he stated that Police did not record it, but only noted the names on a blank: paper. After two days when he again came to Jamia Masjid Darul Salam, he was informed that Huzoor Bux was taken away by the police. '- 21. In cross examination he fixed the time of theft in the month of Jamadiul-Sani. He however, admitted that Sarfraz and Abdul Rehman, P.W. 7 were of Brailvi school of thought, thus giving a lie to the statement of the appellant. 22. Ghulam Murtaza, P.W. 5 claimed to be a Khadim of Masjid Darul Salam and fixed the time of the alleged theft in the month of Rabi-ul-Sani. Contrary to the statement of others he said that Abdul Rehman had brought he trunks from the house of Huzoor Bux. The persons who were breaking the lock were named as Umar Draz, Shafique, Haneef, Ghulam Hussain, al­ though according to Ghulam Haider, D.W. 2 the First Information Report of theft was given by Huzoor Bux after 4 p.m. next day and then the offender was called but this witness stated that the police arrested I/he persons, who committed theft in the morning of the next day and released them in the evening. 23. t has already been seen that according to the D.W.S. the father and family of Huzoor Bux were turned out from the house of Huzoor Bux but this witness stated that before arrest of Moulvi Huzoor Bux his family members resided with him permanently. Other witnesses said that a constable came to Huzoor Bux telling him that the Incharge police station bad called him but this witness stated that on the 3rd day of incident of theft, police arrested Moulvi Huzoor Bux from his Hujrah. He admitted that he and Huzoor Bux, both be­ long to Dera Ghazi Khan. It was suggested to him that he was never a Khadim of the mosque which he denied but he could not give the name of the President of the Managing Committee or of any of its member. 24. Abdul Ghafoor Mujahad, D.W. 6, Khatib of Madni Masjid, 'K' area, Landhi Korangi fixed the time of theft as the month .of Jamadi-ul-Sani. He ,stated that hie went to Huzoor Bux at 11-00 a.m. but was told that he had gone for Ziarat of some Darbar. He is a witness of occurrence^ of alleged theft but according to fcim some of those persons who were in the crowd were armed with pistol, although others had shown the pistol with Abdul Rehman only. According to him three trunks and one tape recorder were taken out. He said that two police constables came on the 3rd day of the theft and asked Huzoor Bux to accompany them since he was being called by the Inchargc Police sta­ tion. On hearing later on that Huzoor Bux had not returned from the police station and his father and family members had been thrown out by the police, he went to the police station where Mqulvi Huzoor Bux was in the look up. He informed him that he was detained by the police officer with a long beard, who asked him. to give a receipt, that he had received the stolen property and that no theft had been committed to which he did aot agree. The witness further added that the police officer also asked him to tell Huzoor Bux that he should execute the receipt, but the witness refused to do so. In cross exa­ mination he said that theft had taken, place in the month of September. According to him 10 or 12 persons were breaking the lock. He then contradic­ted himself by stating that one person was armed with a pistol. 25. Mohammad Idris, D.W. 7 and Mohammad Afzal D.W. 8 as stated above appeared as witness for Moulvi Sabir AH, Mohammad Idris stated that on the llth of March, 1982, there was a public meeting of Seeratul Nabi after hha Prayer which was addressed by Moulvi Sabir AH also, who remained there till Fajar time. Mohammad Afzal, D-W. 8 stated that he also received an invi­ tation on the 10th of March, 1982 for a meeting which was held in the evening. He had heard the speech of Moulvi Sabir Ali that day. He stated in cross examination that the public meeting was held on 14th of Jamadi-ul Sani, and on the 15th of that month there was Quran Khawani in the morning. 26. It appears very clear that except for a bare suggestion about objection of certain persons including Mohammad Haneef regarding the recitation of Darood-o-Salam after prayers no suggestion was made in cross examination to any witness either about the theft or a First Information Report said to have been lodged by Huzoor Bux or about the dismissal of Huzoor Bux from the mosque and his restoration as Imam or about his father and family being turned out from the house after Ws arrest. The entire defence story is there­ fore, imaginary and an afterthought. The defence evidence of D.W. 2 to D.W. 6 is thus false within their knowledge. As seen above the defence ver­ sion given by different witnesses is full of contradiction almost on each point. Some fixed the time 1 of theft in Rajab, some in Jamad-ul Sani, One witness fixed it in Rab-ul-Sani and' another fixed it in the month of September. It is worthwhile noticing that the month of Rajab started in the year 1982 on the 25th of April, when Huzoor Bux was already in the look up since thei 5th April, 1982. The 5th April fell on the 10th of Jamadi-ul-Sani,: Rabi-ul-Sani was several months earlier and September was several months latter. / 27. It was stated by most of the witnesses and was also stated by Moulvi Huzoor Bux in his statement under Section 342 Cr. P.C. that his First Infor­ mation Report was recorded but no such report has been placed on record. On the other hand D.W. 4 admitted that no such report was recorded. Some witnesses named Sarfraz and Umar Draz as persons breaking the lock, others assigned this duty to as many.as five persons excluding Sarfraz. Some said that Abdul Rehman was standing at the door and other witnesses added a constable also in this category but according to the others Abdul Rehman was inside and had stolen the three trunks. The trunks were not mentioned by Huzoor Bux, appellant but they were mentioned by his witnesses. Only two persons said that tape recorder was also taken away. 28. It was stated by D.W. 2 that the First Information Report waTfiven after 4-00 p.m. the next day and then the offenders were called at the police sta­ tion but one witness said that the offenders were called in the morning of the next day of the occurrence. 29. It is established that the story of theft and other versions given by the defence witnesses are a complete lie and the relations between complainant and Huzoor Bux had never been strained. In fact the First Information Re­ port was delayed because Haji Mohammad Haneef did not believe Abdul Rehman that Moulvi Sabir AH had been driving Mohammad Sharif on his motorcycle, he named Huzoor Bux as an accused only after seeing the chit. Ex, P. 6 ajid after contacting Sarfraz P.W. Thus there is no reason tor false involvement of Huzoor Bux or Sabir Ali. 30. It is no doubt true as urged by the learned course! Tor Huzoor B x appellant that the writing on the chit is not proved on record to be thai of Huzoor Bux. The learned Additional Sessions Judge asked Moulvi Hu/oor Bux to copy Ex. P. 6. He also secured another writing from him by dictating to him the contents of Ex. P. 6. It is difficult to say with certainty, whether these two writings compared with the writing in Ex. P. 6. But atleast one thing is common in all the writings and this is the bad hand writing of these admitted documents as well as Ex. P. 6. However, this is not of much im­ portance because Sarfraz made a categorical statement that the chit Ex. P. 6 was given to him by Huzoor Bux, appellant and there is no reason to disbelieve his evidence. 31. It is admitted by Huzoor Bux that Mohammad Sharif had in fact disappeared and was being searched by his father. It is also admitted by him that two weeks before the disappearance Mohammad Sharif had given up his studies under his tutelage. In these circumstances the chit Ex. P. 6 assumes importance. It is a complaint which says that Mohammad Sharif had not met him inspite of his attempts made. If he did not meet him now he would : sit his house next day. I 32. Three witnesses P W. 2 to P.W. 4 all ten aged boys claim to have saen the actual commission of offence of sodomy by Moulvi Huzoor Bux, appellant with Mohammad Sharif, P.W. 6 Mohammad Sharif, victim supported this. The learned counsel criticised this evidence as being unnatural for the reasons that the door had not been closed by Moulvi Huzoor Bux and that he had admonished at least two of these boys next day. The evidence of P.W. 2 is gt the appellant Huzoor Bux was in the habit of kissing the boys and pinching their cheeks. He said that even he was kissed by Huzoor Bux. But even if the evidence of these three persons who have no grudge against the appellant be excluded, the evidence of Mohammad Sharif is sufficient to prove the charge under Section 377 against Huzoor Bux particularly when it ib corroborated by the circumstances of his being taken away by him to different places in the Provinces of Sind and the Punjab from the 11th of March, 1982 to almost two days before his arrest. The fact that the appellant did not go to Masjid Darul Salam and remained in the Hujrah of another mosque i.e., Madni mosque alongwith Mohammad Sharif points out strongly for his unnatural affection for the boy. In these circumstances the medical report about the injuries on the anal canal is also explained«as being the result of the commission of this offence by Huzoor Bux. 33. The learned counsel submitted that this evidence does not support the prosecution in view of its inconclusive nature. There is no merit in this argumeat since the doctor could not give a. conclusive opinion because of his doubt that these injuries might be caused not only by force of male organ but even by other hard substance It. is therefore, clear that according to him the in­ jury could be caused by penetration of a male organ too. The medical evidence is therefore, corroborative of ths statement of Mohammad Sharif. 34. The taking away is proved by the evidence of Mohammad Sharif, P.W. 6 as well as by th« chit Ex. P. 6 the evidence of Sarfraz in this respect, subsequent simultaneous disappearance of Mohammad Sharif as well as Huzoor Bex and ultimately the recovery of Mohammad Sharif from the same Httjmh in Madnt Mosque from where simultaneously Huzoor Bux was arres­ ted. It is also proved from the^evidence of Mohammad Sharif as corroborated by the statement of Abdul Rehman and Abdul Rashid, P.W. 8 that Sabir Ali was seen taking Mohammad Sharif on his motorcycle. 35. The learned counsel for the appellant relied upon an affidavit dated 6-10-1982 said to have been sworn by Mohammad Sharif, P.W. 6 that he had given his evidence against Moulvi Huzoor Bux because Haroon, Sarfraz and Ghulam Ghous were beaten by the police withra belt and no act of sodomy was committed on him by Huzoor Bux. It is~further stated in the affidavit that he was staying in a hotel and would be beaten by his paternal uncle Abdul Rehman, if he went home. This affidavit was produced by Mr. Abdul Latif Munshi, Advocate learned counsel for Huzoor Buksh, who submitted an appli­ cation for recalling and re-examining Mohammad Sharif, despite the fact that all evidence had bees closed by that time. The case was fixed for the 7th of October, 1982 for the hearing of this application by the learned Additional Sessions Judge. On that date Mr, Abdul Latif Munshi sought adjournment or producing law in support of the application. On his request the matte/ was adjourned till the 12th of October, 1982. 36. Mohammad Sharif was produced by Mr. Abdul Latif Munshi on the 7th of October, 1982. His father was also present in the court. He stated that Mohammad Sharif had been kidnapped by the brother of Huzoor Bux and requested that his custody be given to him. After the adjournment of the case the custody of the boy was given to him and he was directed to produce im on. the 12th of October, 1982. Mohammad Sharif was produced on that time by his father. The learned APP filed a statement in the hand of Moham­ mad Sharif, P.W. that he was kidnapped on the 4th of this month by Abdullah brother of Huzoor Bux and was produced before the Advocate where he was threatened and was given a paper on which same statement was written. He was directed to copy it. He therefore, copied it under fear. Thereafter he was kept at the house of Abdullah. 37. Mr. Abdul Latif Munshi Requested that Mohammad Sharif be kept in the custody of some other person for two days and his statement be then recorded. The learned Additional Sessions Judge did not agree with this suggestion and dismissed this application. 38. The learned counsel for the appellant Huzoor Bux contended that the learned trial court should have allowed the application and re-examined Mohammad Sharif I agree with the learned Additional Sessions Judge that such practice which involves taking away of a minor boy by the brother of Huzoor Bux and then making him to swear a statement under threat or promise should not be encouraged. This is one of the methods of tampering with evidence and tampering should not be allowed. I put it to the counsel for the appellant whether Mohammad Sharif could be expected to give such statement which is ascribed to him if he had been informed about the provisions of Section 93 PPC and about the possibility of his being prosecuted or being punished under that Section if he resiled from his statement on oath. The learned counsel conceded thathe would not have given such a statement, dearly the statement, even it be that of Mohammad Sharif could not have been ob­ tained except either by some promises or by threat. It is more plausible that he might have been threatened, when he was in the custody of the relatives of Huzoor Bux. The objections is therefore, without force. 19. The statement of the defenc; witnesses produced on behalf of Sabir Ali is also false since it is clear from the evidence of Mohammad Afzal that the invitation was for the 14th and 15th Jamadi-ul-Sani i.e., 9th and 10 th of April, 1982. Moulvi Sabir Ali was already in the lock up since the 30 th March, 1982 and could not have given a lecture in the meeting held on 9th and 10th of April, 1982. Mohammad Idris did not say that it as 14th and 15 th of Jamad-ul-Sani but he had been referring to the same His evidence is also a pack of lies. Inspite of this the question remains whether the appellant committed any offence under Section 12 of the Ordinance. 40. Section 12 deals with the kidnapping or abduction of a male inter alia with the intent of committing carnal intercourse with him. Kidnapping can be of a male of less than 14 years of age if he is taken away or removed from the guardianship of his guardian (Section 361 PPC). In the present case the Doctor has found the age of Mohammad Sharif to be about 15 years. The offence could not be that of kidnapping. 41. Abduction is defined as either taking away by use of force or enticing away by deceit. There is no element of deceit or use of force in this case. There is only a threat that Huzoor Bux will publish the conduct of Mohammad Sharif if he did not run away with him. Mere use of-threat cannot tantamount to use of force but in any case this is clearly an idle threat because the conduct D of Mohammad Sharif was a result of illicit liaison with Moulvi Huzoor Bux. Any disrepute brought to the name of Mohammad Sharif would have more strongly involved Huzoor Bux. In these circumstances it is neither a case of abduction nor a case of kidnapping. Section 12 does not apply to the case. The appellants are therefore, acquitted of this charge. 42. However, the charge under Section 377 is established beyond any doubt against Huzoor Bux. His appeal in regards to his conviction and the sentence under Section 12 is allowed but it is dismissed in regard to the convic­ tion and sentence under Section 377 PPC. He is entitled to the benefit of Sec­ tion 382 (B) Cr.P.C. The sentence of 10 years awarded to him shall therefore, be treated to include the period from the date of his arrest i.e., 5th of April, 1982 to the date of his conviction i.e., 23rd of October, 1982. 43. The appeal of Moulvi Sabir Ali is allowed,- his conviction and sen­ tence is set aside and he is acquitted. He shall be released forthwith, if not required in any other ca,je. 44. Notices shall be served on Ghulam Haider, D.W. 2, Ghulam Mustafa, D.W. 3,.Mohammad Shaft, D.W. 4, Hafiz Ghulam Mustafa, D.W. 5, Abdul Ghafoor Mujahid, D.W. 6, Mohammad Idris, D.W. 7 and Mohammad Afzal, D.W. 8 to show cause why they may not be punished under Section 193 PPC. (TQM) Order accordingly.

PL J 1983 FSC 181 PL J 1983 FSC 181 (Appellate Jurisdiction) Present; AFTAB HUSSAIN, CJ ANWARUL HAQ alias ANWAR—Appellant versus THE STATE—Respondent Criminal Appeal No, 16/1 of 1983, decided on 26-4-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 7--Zww-r-Offence of—Commission of by non-adult—Punishment for —Held: Appellant if proved to have attained puberty on date of occu­ rrence, consideration of his age to become futile and court not to be competent to give him advantage of lesser sentence. [P. 184] C (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VH of 1979)—

Ss. 7 & 2(a)— Zina —Offence of—Commission of by non-adult—Adult —Definition of—Held: Ingredient of ability to perform sexual act comp-pletely (after attaining seminal discharge) being common to both puberty and potency, person held potent on medical examination also to be pubert not entitled to benefit of S. 7 of Ordinance. {P. 189] F Cr. A. No. 156/1 of 1982 (FSC); AIR 1957 Mad, 243; AIR 1963 Punj. 114, (1948) 2 All. Eng. Rep. 147; (1950) 1 All Eng. Rep. 677 & (1952) 1 All. Eng. Rep. 11, 4 and Medical Jurisprudence and Toxicology by S. Siddiq Hussain; Attorney's Text Book of Medicine, (para 301.02) Muslim Law of Divorce by K.N. Ahmed (Pp. 383, 388); Beck's Medical and Jurisprudence (p. 56) & Shelferd on Marriage and Divorce (P. 202) ref. (iii) Offence of Zina (Enforcement of Hadood) Ordinance (VH of 1979)— ——S. 18— Zina— Attempt to commit offence of—Psychological impotence —Significance of—Held: Psychological impotence beirig no complete physical impotency but only disability to perform act on account of psychological factors at particular time, same to be of no significance in case of attempt to commit offence of Zina or Zina-bil-Jabr. [P. 188] E (iv) Pakistan Penal Code (XLV of I860)— •

. ——S. 354—Assault or use of, criminal force with intent to outrage mo­ desty—Qjffence - of—Victim (aged about 10/11 years only on date of occurrence) -lodging FIR aganist appellant without any delay and fully supporting prosecution case during trial before Sessions Judge—Version given by prosecutrix finding ample corroboraf ion from medical evidence —Appellant also failing to give any reason for his false involvement in case by complainant party— Held: Case against appellant fully estab­ lished.beyond any reasonable doubt. [P. 183] A & B (y) Words and Phrases— -

"Impotence"—Meaning of. [P. 185] D Butterworth's Medical Dictionary (Second Edn.) P. 974; Price's Test Book of the Practice of Medicine (1973) p. 601; Medical Jurisprudence and Toxicology byS. Sidduq Hussain p. 167, Modi's MedjcalJurispnuience and Toxicology p. 306; Attorney's Text Book of AMicine (3rd Edn,), Vol. 4-B, para 3 & 32 & Hexagon Roche (Vol. 10, 1982 Humber 4) ref. Mr. Iftikhar Hussain Chaudhry, Advocate for Appellant, Dr. G.S. Khan, Advocate for the State. Date of hearing: 26-4-1983. judgment This is an appeal filed by Anwarul Haq against the order of Chaudhry Mohammad Nasim, Sessions Judge, Rahimyarkhan dated 25-1-1983 by which he convicted the appellant under Section 10(3) with Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and giving him benefit of Section 7 of the Ordinance, sentenced him to two and a half years R.I., 10 stripes and a fine of Rs. 1,000/-, in default of payment of which he directed him to undergo R.I. for six months. 2. The prosecution case is that the complainant Mst. Majeeda Bibi is a resident of Quarter No. 208 in Abu Dahbi Colony No. 1, Chak No. 52/P while the appellant is a resident of Quarter No. 245 in the same Colony. On the 17th of March, 1979 at about Maghrib Nimaz-wela, the complainant Mst. \ Majeeda Bibi P.W. 1 aged about 10/11 years went to ease herself on a nearby \sand mound. When she returned therefrom she was caught by the appellant Vho took her by force to a room and from there to the kitchen. He bolted the door from inside. He tied her hands and mouth with her "dopatta" and tried to untie "the Shalwar's string. The complainant raised an alarm which attracted her grand-mother Mst. Zohran, P.W 2 and Saleem and Sadiq (who were given up) as well as Feroze Din, P.W. 3. The appellant feeling preplexed, came out of the kitchen, bolted it from outside but it was opened and Mst. Zohran, P.W. 2 united the hands and mouth of her grand daughter Mst. Majeeda Bibi, P.W. 1. 3. The appellant was caught immediately. The First Information Re­ port of this occurrence was recorded at Police Station, Rahimyarkhan which is at a distance of 16 kilometer from the place of occurrence, at about 10-00 p.m., the same day. 4. The complainant was examined by lady Dr. Mrs. Aisha Sher Mohammad, P.W. 5, on the 18th of March, 1979. She found the following injuries on her person:— (<?) A Hiiear abrasion 1" covered with scab on inner side of left elbow joint on radial side. (ft) A linear abrasion 1" covered with scab on ulnar margin of inner side of left elbow poim. (c) An abrasion 1/8" x 1/8" on first finger of left foot. id) An abrasion very superficial 1" x 1/8" on left knee joint. (e) She complains of pain in chest and back but no mark of injury seen. 5. The appellant was also medically examined the same day by Dr. Anwarul Haq (not produced) who found him phychologically impotent. He was re-examined for potency by Dr. Mohammad Latif, P.W. 4 on the 25th of June, 1979. Dr. Mohammad Latif also examined him in order to determine his age. He found him to be between 16/17 years of age. On the question of potency, he was of the view that, there was nothing to suggest that the appellant was not capable of performing the sexual intercourse. He arrived at the finding on the following observations:— (i) Penis well developed. (i'i) Testicles well developed. (Hi) No abnormality seen in the penis and testicles. O'v) No other abnormally found. 6. In order to prove the prosecution case, on merits, Mst. Majeeda Bibi, P.W. 1, Mst. Zohran, P.W. 2, and Feroze Din, P.W. 3 were produced. Mst. Majeeda Bibi supported the case completely. Mst. Zohran Bibi, her grand mother had to be cross-examined by the Public Prosecutor since she turned hos­ tile. The statement of Feroze Din also is of the same calibre but it is also based on hearsay. Sadiq and Saleem both were given up. It was stated that Sadiq had been won over and whereabouts of the Saleem were not known. Another witness Tufail was also given up as won over. 7. The appellant denied the charge and all matter appearing in evidence against him except his medical examination by Dr. Mohammad Latif, P.W. 4. He neither led any defence evidence nor gave an explanation for his involvement in this case though he stated that the case was false. 8. ,. 8. It appears very clear from these facts that there has been some com­ promise between the complainant party and the appellant as a result of which Mst. Zohran Bibi did not support the prosecution case. The witnesses had also to be given up for that reason. The only evidence which requires con­ sideration is the evidence of Mst. Majeeda Bibi. 9. The evidence of Mst. Majeeda Bibi, P.W. 1 who was aged about 10/11 years only on the date of occurrence and had also given the First Information Report Ex. P.A. fully supported the prosecution case and there is nothing on the record on account of which her testimony may be disbelieved. The version given by her is corroborated by the medical evidence of Dr. Mrs. Aisha Sher Mohammad, P.W. 5. 10. The learned counsel however urged that uncorroborated testimony of a prosecutrix is not sufficient for conviction of the appellant. In the present case, this question does not arise because I have already held that the testimony of Mst. Majeeda Bibi is amply corroborated. It is a point worth-noticing that there is no explanation on the record why the appellant should be involved by the complainant party in a false case. Only a suggestion was made to Mst. Majeeda Bibi that her uncle Shah Nawaz wanted to take' possession of the quarter in which the appellant is residing which she denied but this was not followed by either further cross-examination or any thing in the statement made under Section 342 or by defence evidence. The case against the appellant is fully established beyond any reasonable doubt. 11. The next question is whether the offence amounted to an attempt to commit Zina-bil-jabr or simply an offence under Section 154 P.P.C- The prosecution case is that Mst. Majeeda Bibi was first dragged inside the house to a room and from there to the kitchen obviously with the intent to subject her to Zina-bil-jabr: her hands and mouth were tied by the dopatta and an attempt was made to untie the string of her Shalwar. On these findings the learned counsel for the appellant relied upon Yaseen Versus The State, P.L.D. 1983 F.S.C. 53. 12. In that case the conviction under Section 18 of the Ordinance was sub­ stituted by one under Section 354 P,P.C. Para 9 of the judgment gives the ratio of this distinction between the two provisions and is as follows:— "Now it is clear from the record that the appellant was at most found lying on Mst, Sardaran and trying to make her naked by removing her Shalwar. He did not succeed in the attempt at removal of the Shalwar. Some of the judgments of the Federal Shariat Court have gone only to the extent of holding that if the accused takes away his own Shalwar and is also successful in removing the Shalwar of the victim, it would amount to attempt at Zina-bil-Jabr. But in the present case even that stage was not reached. In the circumstances of the case if the Shalwar had been removed. I would have agreed with the finding of the learned Additional Sessions Judge that this was an attempt since the appellant was not only lying upon Mst. Sardaran but was also making an effort to commit sexual intercourse with her. I would also have agreed on this point with the learned Addi­ tional Sessions Judge if there had been evidence that the Shalwar had . • been torn from a place which would have facilitated the commission of the sexual act but even that evidence is not forthcoming since the Shalwar is not available. In these circumstances it cannot be held that the appellant had been guilty of committing the offence of attempt under section 18 of the said Ordinance. Since he had committed another offence, under Ssection ^ 3454 P.P.C. he can only be convicted and sentenced under that section." This case is almost on all fours with the present case. The appellant is therefore, held to have committed an offence under Section 354 P.P.C. 13. Before parting with this case I would like to touch some other points arising in this case for the sake of future guidance. The learned Sessions Judge had given the benefit of Section 7 of the Ordinance to the appellant merely on consideration of age. and given him light punishment. Notice for enhancement of sentence in exercise of revisional jurisdiction of this Court was therefore issued to the appellant. I have heard detailed arguments on the question. 14. It is no doubt true that despite the fact that the appellant in his own statement gave his age as 23 years, he was found on his medical examination to be less than 17 years old. If only his age is taken into consideration the order of the learned Sessions Judge cannot be said to suffer from any mistake in respect of applicability of Section 7 but if it is proved that he had attained puberty on the date of occurrence, the consideration of his age will become |futile and it will not be open to the Court to give him the advantage of the lesser sentence under Section 7. 15. It is correct that there is no specific evidence on the record whether the appellant is in a position to discharge semen. The evidence of the two Doctors i.e., Dr. Anwar Hussain Shah, who found him to be psychologically impotent and Dr. Mohammad Latif who found nothing to suggest that he could not perform the sexual act is not different on the,point of potency, both excluded the possibility of there being any malformation which could result in organic impotence, Psychological impotence pre-supposes that a person is not physically impotent. The word impotence has been defined in variousi dictionaries. The following definition is, given in Butterworths Medical Dic-\D denary (Second Edition) at page 974. It defines impotence as:— '"Inability to perform the sexual act (in contradiction to sterility-inability to reproduce), owing to failure of the reflex mechanism. As the female can perform the sexual act even, witjiout activation of the normal reflexes, impotence is correctly used, in a strict sense, only of the male. Functional Impotence: —Impotence in the healthy and fully matured male, invariably due to psychological casues. Organic Impotence:—Impotence due to disease or anorniality of develop­ ment e.g. extreme hypospadias, infantilism, tabes, etc. Primary Impotence: —Impotence due to psychogenic causes; also used to denote relative or total failure of the primary sexual urge with resulting incapacity, e.g. the impotence which comes on with advancing age. Psychic Impotence, Psychogenic Impotence; —Functional impotence. Relative Impotence: —Inability to perform the sexual act with one or more particular women, though not generally. Secondary Impotence:—Impotence due to organic casues, organic impo­ tence." 14. It is clear from this definition that impotence in a male may be of several kinds. Organic impotence may be due to disease or abnormality of development. Primary impotence is due to psychogenic causes. Psychic im­ potence is inability to perform the sexual act with one or more particular women though not generally. Secondary impotence may also be due to organic casues. The psychic or psychogenic impotence is the same as functional impotence which in the healthy and fully matured male, is invariably due to psychological causes. 17. In Price's Text Book of the Practice of Medicine (Oxford University Press, 1973) at page 601 it is stated that inability to achieve normal sexual intercourse due to persistent inability to have or sustain an erection constitutes impotence. Under the heading Aetiology, it is stated, "Penile erection and ejaculation depend upon a spinal reflex at the sacral (parasympathetic nerves derived from S. 2, 3 and 4 through the nervi eri-gentes) and the lumbar levels (sympathetic nerves derived from L 2 and 3) No less important are psychological stimuli from the higher cerebral centres which together with androgen secretion govern libido. Temporary im­ potence is common in any generalized illness, and also at times of psycholo­gical stress. Local causes of impotence include hypo and epispadias, Peyronie's disease and Leriche's syndrome (atherosclerosis of the iliac arteries or aorta leading to intermittent claudication in the thighs and impotence). Prosta­tectomy may also be followed by impotence. Neurological disorders that may cause impotence include diabetic neuropathy, in which impotence may be a very early complaint, other causes of peripheral neuritis, tumours or injuries to the cauda equina, spina bifida, disseminated sclerosis, tabes dorsalis and syringomyelia. Lesions of the cerebral temporal lobes are also sometimes associated with impotence. Sympathetic ganglionic blocking drugs, used for the reduction of hypertension, may cause impotence, or more often failure of ejaculation. Most patients with hypogonadism (p. 598) experience impotence In practice the commonest cause of impotence is a psychological distur­ bance. Sometimes this is an expression of a Repressive illness but more often it is of a complex psychpneurotic nature particularly when the onset of the impotence occurs early in life." 18. It is stated that in practice the commonest cause of impotence is a psy­chological disturbance and more often it is a complex psychoneurotic nature particularly_when the onset of the impotence occurs early in life. In Medical Jurisprudence And Toxicology by Dr. S. Siddiq Husain, the following psycho­ logical factors are given at page 167 i.e. "In males, e.g. fear, timidity, aversion, hypochondriasis, excessive passion, or sexial over indulgence. These are a common cause. A man may be impotent with one woman, but potent with another". Detailed analysis is given in Modi's MedicalJurisprudence And Toxicology at page 306, para, 5, wherein it is said that, "Psy kogenic Origin. A temporary absence of desire for sexual inter­ course may result from fear, anxiety, guilt sense, timidity aversion, hypo­ chondriasis, excessive passion, and sexual over-indulgence. Persons with homosexual tendencies may be impotent. Sometimes, an individual ma> be impotent with one. particular woman, but not with another; It should be noted that in a divorce suit the question to be decided is the in­ capacity of the husband for sexual intercourse with his married partner; his capacity for intercourse with other women is of no consequence in decid­ ing the case. Iquorance of sexual technique or infrequent intercourse in non-ovulating period may cause sterility." In Attorney's Text Book of Medicine, Third Edition, Vol. 4-B, by Gordy Gray, para 301-32 Psychic Impotence is explained as under:— "Psychic impotence, far more common than organic, does not lend itself to orderly classification. In general such temporary or permanent im­ potence is caused by conscious and unconscious mental conflicts in the sexual sphere. Such conflicts may concern fears and anxieties, repeated frustrations and inhibitions, quilt complexes, a sexually incompatible wife, and the individual's inability to accept the mature sex role for any one or a combination of the latter. In addition, problems of latent homosex­uality may play a large part. Libido which is an essential ingredient of potency is then described; Libido. Libido, or sexual desire, is wholly dependent upon conscious and unconscious mental processes. Fear or failure, anxiety about impo­ tence, false modesty, wounding of self-pride, boldness, timidity, and roughness, to name but a few of the many mental obstacles to satisfactory sex relations, may so destroy, the delicate coordination between intellectual, sensory, and motor centers that impotence follows. Any significant stress in the life of an individual may temporarily cause impotence. This is not at all unusual and has no grave significance. Generally, impotence of this tupe is reversible when the stressful situation corrects itself. The discussion on Selective Impotence is explanatory of negative ingredients of impotence. Selective Impotence: Perhaps the niost characteristic symptom of psychic impotence is that it is selective in nature, that is, it occurs under one set of <arcuinstance£ but not necessarily under another There are various combinations of such circumstances. Fot example, a msav may bt vxa.- potent with his wife but potent with his mistress, or a man be impotent » with a loved one, yet potent with a prostitute. This generally occurs because a man believes that the sex act is lowly and indecent and is under impression that sex belongs to the low instincts of his nature and is there­ fore incompatible with his spiritual life or feelings for a decent woman. The selective nature of impotence necessitates an awareness and under­ standing of the uniqueness of each individual, his psychology and his impotence. Generalizations made about causative factors in psychic im­ potence should not be applied indiscriminately. They do not tell much about a particular individual and the conflicts within him giving rise to impotence. In cases where a man is only impotent with his wife, for

.example, conditions such as prostrate trouble, anemia, and overwork may bse blamed. In actually, however, they serve as a "smokescreen" excusing feelings of hostility and resentment toward his wife which are more basic to the cause of his impotence. Impotence with a loved female, another prevalent form of selective impo­ tence, may be explained as follows; In the emotional development of a male child feelings of love towards his mother are older than the sensual feelings arising at puberty. These love feelings must be freed from the mother and fused with the newer sensual feelings and both must be trans­ ferred to the wife in order for satisfactory sexual adjustment to occur. If this fusion and transference do not take place, the newer sensual feelings become attached to incentuous fantasies and the result may be impotence. Hence, a man with genuine affection for his wife may be incapable of erec­ tion and coitus with his wife but not be impotent with women for whom -S he has no affectional attachment such as prostitutes. Still another common form of selective impotence is impotence prior to orgasm and ejeculation. In such cases of impotence, the penis generally becomes limp after vaginal entrance and coitus is therefore terminated before orgasm and ejeculation have occurred. This sometimes occurs because lax musculature in a well-lubricated and multiparious vagain does not provide sufficient tactile stimulation to the glans penis to keep the erec­ tion in force. At the psychological level tills type of impotence may be related to such factors as feelings of guilt, feer of discovery, or fear of pregnancy. An additional cause may lie in the male feeling that his partner is unresponsive or disinterested. On a consistent basis this may lead a male to stop mamaking approaches to his wife or to be impotent on attempts at intercourse. Acquired patterns: —Guilts, anxieties, and frustrations may develop as the result of a parental, peer, religious, or environmental education which consciously or inadverently promotes the concept that sexual activity is dirty and indecent." This conditioning may prove problematic to the degree that impotence will occur in varying degrees." In Hexagon Roche (Volume 10, 1982 Number 4) the psychological impo­ tence is explained in the following manner:— "Psychological impotence. Psychological impotence is much the com­ monest sort. Often commencing with failure erection at a hastily contrived and inappropriate first encounter, confidence is shattered, and if reinforced with a further failure, more or less continuous failure supervenes. Such a clue to psychological impotence sometimes emerges clearly on detailed discussion. Another clue to this type is the admission that spontaneous erections do indeed commonly occur, such as on waking in the morning. Another common setting for psychological impotance is seen in the pro­ fessional man, where huge protracted and unavoidable stresses are en­ countered, and preoccupation with business worries leads to impotence. Here, however, it is likely that the condition is only intermittent, with successful intercourse occuring at periods when his attention is diverted into more pleasant evenues. Excessive use of alcohol seems to aggrevate the condition and reduction proves difficult when extensive entertaining goes with his job. Counselling might include regular exercise, a hobby or a holiday. Neurotic impotence has been considered in detail previously in this journal by BENEDETT. Depression also commonly causes impo­tence, but here the predominant concern is usually related to the features of the mental illness rather than the sex disturbance." 19. It is therefore, clear from these definitions that pshychological impo­ tence is not a complete physical impotency. The only disbility is disability to perform the act on account of psychological factors at a particular time. It is not however r of any significance in a case of attempt to commit the offence of Zina or Zina-bil-jabr. 20. The next question is whether the word "potent" carries with it a sense of puberty because it is the word puberty which has been used in Section 2(a) definition of adult. The word puberty has been explained by this Court in a Full Bench decision in (Cr. A. No. 156/1 of 1982) Sarwar Versus The State, decided on 15-2-1983. It was held that it is attained in a male when he is in a position to ejeculate. The preposition is well settled that; "In the case of males, potency is indicated by power of erection of penis and discharge of healthy semen containing live spermatozon." (Medical Jurisprudence & Toxicology) by Dr. S. Siddiq Hussain In Attorney's Text Book of Medicine by Gordy-Gray para 301.02, potency is defined as follows; "Potency is a term commonly used to describe the ability to perform the sexual act. It includes the emotional and physical capacity for sexual desire and erection satisfactory for purposes of heterosexual intercourse, orgasm, and ejeculation." See also the Muslim Law of Divorce by K.N. Ahmed pp. 383, 388. This view was judicially taken in two cases of Indian Jurisdiction, T. Rangaswami, Appel­ lant Versus T. Aravindammal, Respondent, A.I.R. 1957 (Madras) 243 zn&Jagdish Kumar Appellant Versus Sff. Sita Dev, Respondent A.I.R. 1963, Punj 114. Under the Muslim Law which allows divorce on proof of impotency at the time of marriage, discharge of semen in the wife's body is not an essential condition of coition but the question is not relevant in the present case in which the question is of interpretation of the Medical opinion possible on the basis of medical data. 21. In some English cases this question was raised though it does not appear to be pertinent on the interpretation of the word 'consummation' which was the subject matter of interpretation there. However, the medical defini­ tion referred to therein is the same. Thus in Grimes Versus Grimes (1948) 2 All Eng. Rep. 147. Beck's Medical Jurisprudence, p. 56 was relied upon by the Counsel suggesting that emission is an essential part of intercourse. It is said in the book that; "The inability to propel the semen out of its vessels is frequently to be considered as an absolute cause; but generally it is a curable one." The reference by the Counsel was to cause of impotency. But Finnemore, J. observed that! "We are not concerned here with the medical side of the point and merely seek some further authority that emission is one of the qualities essential to produce a proper act of normal intercourse." The question before the Probate, Divorce and Admiralty Division was not thus of potency or impotency but simply the one posed by Finnemore, J. 22. The same proposition was relied upon in Cackett Versus Cackett (1950) 1 All Eng. Rep. 677] Reference in that case was made to She/ford on Marriage and Divorce (1941), page 202, in which the author says; "Impotence then consists in incapacity for copulation, or in the impossi­ bility of accomplishing the act of procreation. The manifest causes of impotence in both sexes are divided into physical and moral. The causes of impotence in man arise from two sources, from malformation of the genitals or from want of action in them but in females impotence can only, depend on malformation, either natural or acquired." Hodson J, observed; "It is said that it appears to have been thought that an essential part of the act of intercourse was the emission of seed into the body of a woman, and in that connection I was further reminded that at common law, before the Stat. Geo. 4, C. 31, the emission of seed was an essential part of the evi­ dence in criminal cases where carnal knowledge was involved." He however, held that emission was not an essential part of consummation which is completed by penetration. To the same effect is R. Versus X. (1952) 1 All. Eng. Rep. 1194. In Medical Science thus potency is attained when the male is able to dis­ charge semen. Once it is held that out of the ingredients of puberty, the ingredient of ability to perform sexual act completely (after attaining seminal discharge) is common to puberty and potency both, it must follow that a person held potent on medical examination is also a pubert and is not entitled to the benefit of Section 7 of the Ordinance. 23. The opinion of Dr: Mohammad Latif is stated to be a negative opinion that there is nothing in the appellant to deduce that he is not fit to perform the sexual act. The question is whether this opinion is an opinion in favour,of his potency. This point was explained in Parikh's Text Book of Medical Jurispru­ dence and Toxicology by C.K. Parikh (at pages 441 and 442) which is reproduced below:— "If the Medical Officer finds that the person is normal in all respects, that is, he is physically well developed, his genitals are normal, his secon­ dary sex characters are also well developed and any, obvious cause of impotence is excluded, he is justified in certifying that there is nothing to suggest that the person is impotent. Accordingly, an opinion can be given only in negative form that there is nothing found on examination which would prevent the consummation of marriage. Cases of alleged impotency from disease or following trauma, requiring medical evidence, often cause difficult." In Modi's Jurisprudence and Toxicology page 303, it is stated that; "It is, therefore, necessary for the medical jurist to ascertain by an exami­nation of the individual in a case of disputed potency, if there is any ab­ normal condition which is likely to interfere with the normal function of copulation." The Doctor can therefore, certify potency by taking the negative stance that there is no such abnormal condition. From this it is clear that such negative opinion is given by the doctors generally wherever they find in favour of potency of the male. 25. The result is that the Revisional notice is discharged, the appeal is allowed, and the conviction under Section 18 read with Section 10 (3) of the Ordinance is converted into one under Section 354 P.P.C. The appellant shall now undergo two years rigorous imprisonment and Rs. 2,60Q/-, as fine which if recovered would be paid to the prosecutrix. In case of default in payment of fine he shall undergo rigorous imprisonment for a further period of six months. The period during which he remained in Jail during trial shall be deducted from the period of imprisonment referred to above. (TQM) Order accordingly.

P L J 1983 FSC 190 P L J 1983 FSC 190 (Original Jurisdiction) Present: aftab hussain, CJ., ali hussain qazilbash, zahoorul haq, muhammad siddiq & malik ghulam Au, JJ Haji MUHAMMAD MOIZUDDIN HABIBULLAH—Petitioner versus GOVERNMENT OF SIND —Respondent Shariat Petition No. K—7 of 1982, decided on 4-4-1983. Constitution of Pakistan , 1973—

Arts. 203-D & 203-B and West Pakistan Urban Immovable Property Tax Act (V of 1958)—S. 22—Fiscal law—Repugnancy to Injunctions of of Quran— Federal Shariat Court —Bar of jurisdiction of—Held: Federal Shariat Court to have no jurisdiction in respect of Act pertaining to taxes. [P. 191] A Petitioner in person. Date of hearing: 4-4-1983. order The petitioner has challenged Section 22 of the West Pakistan Urban Im­ movable Property Tax, Act, 1958, which bars the jurisdiction of the Civil Court in any matter which the Government or any assessing authority or any officer or servant is empowered by the said Act or the rules made thereunder to dispose of, or take congizance of the manner in which the Government, or any assessing authority, Officer or servant exercise any powers vested in it or him by or under this Act or the rules made thereunder. We have heard the petitioner. He relied upon verses of the Holy Quran, in respect of Adi or justice. We are afraid that we have no jurisdiction in respect of this Act which is an Act pertaining to Taxes. The petition is therefore, dismissed. (TQM) Petition dismissed.

P L J 1983 FSC 191 P L J 1983 FSC 191 (Revisional Jurisdiction) Present: aftab hussain, C.J. & ali hussatn qazilbash, J THE STATE—Petitioner versus ANAYATULLAH—Respondent Criminal Revision Petitions No. 22/P & 23/P of 1982, decided on 2-5-1983. (i) Constitution of Pakistan , 1973—

Art. 203 DD—Federal Shariat Court—Revisional jurisdiction of— "Case decided"—Meaning of— Held: Criterion of lack of jurisdiction or acting in excess of jurisdiction or of other jurisdictional errors having not been provided in constitutional provisions, same not to be imported in it— Held further: Meaning of expression "case decided" in Article to be more extensive than that used in C.P.C.—Civil Procedure Code (V of 1908)—S.I 15. [P.195JC (ii) Constitution of Pakistan , 1973—

Article 203 DD—"Case decided"—Meaning of—Held: Words "case decided" not to mean all proceedings but only decisions relating to some matter in controversy affecting rights of parties. [P. 195] B PLD 1964 Kar. 149 re f (in) Prohibition (Enforcement of Hadd) Order (P.O. 4 of 1979)—

Art. 9—Drinking liable to hadd— Proof of—Witness—Inquiry into truthfullness of—Held: Determination of question of witnesses being truthful or not to be discharged by Court alone and not to be entrusted or delegated to any other person. fP, 196] D (iv) Prohibition (Enforcement of Hadd) Order (P.O. 4 off 1979>—

Art. 9—Drinking liable to hadd —Proof of—Witness—Inquiry into truthfulness of—Procedure— Held: Court to be entitled to put questions to witness and to make reference about antecedents of character of witness and also to make on spot inquiry from persons assembled there. [P. 196] E (v) Prohibition (Enforcement of Hadd) Order (P.O. 4 of 1979)—

Arts. 8 & 9 read with Criminal Procedure Code (V of 1898)—S. 190 (3)—Drinking liable to hadd-Offence of —Cognizance of— Held: Police to be competent to register case under Art. 8 of Order with or without any other Article— Held further: Magistrate not to forward case to Sessions Judge unless case be found to be covered by provisions of Arts. 8 & 9 and Hadd sentence be possible to be passed on facts apparent on face of record. [ p - 197] G (vi) Criminal Procedure Code (V of 1898>—

S. 190(3)—Cognizance of offences—Cognizance—Meaning of— Held: Word "Cognizance" not merely to mean preparation to deal with matter without application of one's mind— Held further: Magistrate to be duty bound to apply mind to facts of case in order to determine whether case be exlusively triable by Sessions Judge or by another Court also. [P. 196] F PLJ 1981 SC 431 ref . (vii) Civil Procedure Code (V of 1908}— —S. 115—"Case decided"—Meaning of—Held: Word "case decided" to be wide enougfi. to instwte mterfocutory oixfers passed in suit. [P. 194] A AIR 1943 Lah. 65 & PLD 1970 SC 288 ref. Mr. Sahibzada Akktar Mmir, Asstt: Apvocate General for the State. Mr. Javed Penez Khan, Advocate for Respondent. Mr. Jalal-ud-Din, Advocate, for Respondent. Date of hearing: 2-5-1983. judgment This order will dispose of Cr. Revision Petitions Nos. 22/P and 23/P of 1982 since the points involved in both these petitions are common. Two criminal cases out of which these petitions arise were taken cogni­ zance of by a Magistrate under Section 190(3) of the Code of Criminal Pro­ cedure and treating them to be exclusively triable by the Court of Session, they were sent to the Court of Session for trial under Section 8 of the Prohibition (Enforcement of Hadd) Order, 1979. The Order provides inter-alia for the punishment of drinking liquor Section 8 deals with the punishment of an offence of drinking which is liable to Hadd. Section 9 provides for the proof of drinking which consists of either a confession by the accused of the commission of the offence of drinking liable to Hadd or at least two male adult witnesses, about whom the Court is satisfied, having regard to the requirement of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), and who give evidence of the accused having committed the offence of drinking liable to Hadd. Where neither a confession is made, nor the evidence of truthful wit nesses who have seen a person drinking liquor by mouth is forthcoming, the Order provides under its Section 11 for his punishment in tazir. Section 27 of the Order provides in its sub-section (1) for the forum for trial of cases under Section 8. It confers exclusive jurisdiction on the Court of Session. As stated above, the Magistrate who took cognizance of these cases sent them under Section 190(3) of the Cr.P.C. to the Sessions Court, since the challans were submitted inter-alia under Section 8 of the Order. - 7. The learned Additional Sessions Judge, who was seized of this case, passed the impugned order in criminal revision petition No. 22/P of 1982, on the 1st of June, 1982 and a similar order in criminal revision petition No. 23/P of 1982 on the 29th of May, 1982. He returned both the files to the Ilaqa Magistrate concerned with the direction to adopt the procedure of tazkiyah al-shuhood with a direction to inquire whether each of the prosecution witnesses was an adult, male, muslim, truthful and had been abstaining from commission of major sins. He further directed him to check the record of the criminal cases during the whole service tenure of each witness and find out the cases in which he was examined as a witness in a Court of law and to satisfy himself that the statement of the witness in each case was relied upon by the concerned Court as a true statement and no accused was acquitted due to reasonable doubts about the statement of the witness. The Magistrate had further to satisfy himself that each of the prosecution witnesses was a truthful person in private life and had been so before and during his service, and had com­ mitted no major sins before and during his service. These directions were given because all the witnesses in these cases are Government servants. In order to make the task easy for the Ilaqa Magistrate concerned it was directed that he could get the help of the PDSPs and Pis concerned in checking the record and then to submit the list of all the criminal cases in which a certain witness had been a witness in Court with a certificate that no such case was left out of the list during the period of posting of the witness to a certain station with a certain designation during the whole service of the witness. The Magistrate was also required, to declare that the case is fit to be tried under Article 8 of the Order and if he was of the opinion that complete details about the truthfulness and abstention from major sins of the witness could not be ascertained, he might order that the case be tried by a Court of a competent Magistrate having the jurisdiction to try the same and in order to remove a possible obstacle in his way, he could ask the PDSP or PI to delete Article 8 from the challan. In case the Magistrate felt satisfied that the case was fit to be tried under Article 8, he was required to report having regard to the procedure of tazkiyah al-shuhood that two witnesses had actually seen the accused drinking alcohol by mouth without 'ikrah' or 'iztirar'. 9. The State has filed these revision petitions inter-alia on the ground that the learned Additional Sessions Judge had no power to delegate his func­ tion or authority to the Magistrate and all that he required the Magistrate to do was \vhhin the scope of his own duty. 10. The first important question in this case is about the scope of the revisional jurisdiction of this Court. This jurisdiction appears to be different to much more circumscribed than the jurisdiction under Section 435 Cr.P.C. The revisional jurisdiction was conferred upon the Court by virtue of Article 203-DD sub-Article (1), which is relevant and is reproduced below:— "The Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court and may, when calling for such record, direct that the execution of any sentence be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record". Section 435 Cr.P.C. which confers revisional jurisdiction in criminal cases an inter-alia the High Court is analogous to the above Article except to the extent that in that section the Court is empowered to "call for and examine the record of any proceedings", while in Article 203-DD (1) this Court can "examine the record of any case decided The expression "case decided" is used in Section 115 C.P.C. which confers revisional jurisdiction on inter-alia the High Courts in civil cases. The Section also lays down the ground for exercise of revisional jurisdiction. These are grounds pertaining to jurisdiction only whether it be a question of absolute lack of jursdiction or of jurisdictional error. The only distinction between the provisions of Section 115 C.P.C. and the provisions of this Article is that here the examination is limited to the record of a case decided but there is no guidance in respect of the ground on which interference is possible in exercise of the revisional jurisdiction. It is clear that Section 435 Cr.P.C. is very wide and the Court has the power to examine all proceedings, though ultimately the Court has to deter­ mine the correctness, legality or properiety of any finding, sentence or order. In this Article, the use of the expression "case decided" is very significant. It proves the legislative intent to make a departure from the provisions of Section 435 Cr.P.C. The use of the language used in Section 115 C.P.C. in which the scope of revisional jurisdiction is limited would show that it was never intended to make the Constitutional jurisdiction as extensive as under Cr. P.C. !4. The word "case decided" has been the subject of interpretation in a •ge number of cases but now there is unanimity on the point that it is wide ough to include interlocutory orders passed in a suit. 15. In Bibi Gurdevi v. Chaudhri Muhammad Bakhsh and others (A.I.R. 1943 Lahore 65), the word 'case' was explained in the following:— "I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a 'case for the purpose of section 115, Civil P.C., is to be deduced not from the meaning of the word 'case', bv.t from the proper scope and limits of the revisional jurisdiction conferred upon the High Court by that section. From the standpoint of language, pure and simple, there seems to be no good reason why one branch of a suit should be held to be a 'case' but not another and the word may include any interlocutory order. This does not, of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness, etc., ould be looked upon as 'cases. But when a decision relates to some matter in controversy affecting the rights of the parties, I do not see why it should not be looked upon as a 'case'. This wide interpretation of the word 'case' is not, I think, likely to lead to inconvenience in practice as the field of interlocutory orders subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revisional jurisdiction." The words 'case decided' do not mean all proceedings but only decisions relating! to some matter in controversy affecting the rights of the parties. In 5. Zafaf Ahmad . Abdul Khaliq, P.LD 1964 Kar. 149 it was held that the word 'case' was intended to cover any state of facts juridically deter­ mined and not necessarily the whole cause or matter in dispute. The statement of law in Bibi Gurdevi's case was approved by the Supreme Court of Pakistan in Vmar Din Khan and others . Tila Muhammad Khan (PLD 1970 S.C. 288). Section H5 C.P.C. lay down one other criterion. It is the criterion oft lack of jurisdiction or acting in excess of jurisdiction or of other jurisdictional errors. This criterion is not provided in the Constitutional Provisions of Article 203-DD and cannot therefore be imported in it. The meaning of the expression 'case decided' in the above Article is thus more extensive than the meaning of that expression in the Code of Civil Procedure. The present case appears to be very much analogous to the case re­ ported in Bibi Gurdevi. In one sense however, it is a much stronger case, be­ cause here the question is about the jurisdiction of the Additional Sessions Judge to entrust the enquiry of what he himself was expected to do to another ourt and thus virtually delegating his own authority to him. The petition cannot, therefore, be said to be incompetent. Now there are two points in this case which emerge from the order of the Additional Sessions Judge. The first is a direction to the Magistrate to carry on the enquiries of tazkiyah al-shuhood and to report the case to him for trial only if the witnesses are proved, to be of the character required by Section 9 of the Order. The second point amounts to this that the Magistrate should look into the case and find out whether the case was really covered by Section 8, and send it to the Sessions Court if he came to the conclusion that k was so covered. He was also required to carry out the tazkiyah al-shuhood of all the witnesses whether Police Officer or a Medical Expert, while examining the cases with this object. 20. So far as the first question i concerned, there is no doubt in our minds that it is beyond the jurisdiction of the learned Additional Sessions Jud.ge. Under Section 9, it is his own duty to make an enquiry into the truthfulness of the witnesses and that they abstain from major sins. Clause (b) of Section 9 alongwith explanation thereto is reproduced below:— "At least two Muslim ad-alt male witnesses, about whom the Court is satisfied, having regard to the requirement of tazkiya al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence of the accused having committed the offence of drinking liable to hadd". Explanation. —In this Article, tazkiyah al-shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness." The explanation clarifies and leaves no doubt that tazkiyah al-shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness. ThisCourt is no other than the trial Court itself. 21. It is possible that the Sessions Judge may call for a report even from a Magistrate, but he cannot leave the question of determination whether the D witnesses are truthful or not to any reporting authority or any other person. This function has to be discharged by him alone. It cannot be entrusted or delegated to any other person. The order of the Additional Sessions Judge to this extent cannot be sustained. 22. It appears very queer that the learned Additional Sessions Judge has considered it advisable to ask the Magistrate to sift all the Court record, in respect of witnesses as well as the Police record., and then to give the list of all cases in which the witnesses had appeared and were believed. Such a fishing nquiry is neither contemplated in law nor is possible. No Magistrate can t>e expected to undertake such a heavy responsibility nor has he the time for it. The cross-examination provides one of the methods of such enquiries. The Court is entitled to put Court question also to witnesses and there is no bar or limit to such questions. He can put all these questions to the witnesses him­ self. In addition he may make reference about the antecedents of character of a witness to those who know him provided they themselves are truthful. He can also make on the spot inquiry from the person assembled there. But the procedure adopted in this case is not comprehensible to us. This procedure is neither practical nor legal nor helpful. We are now left only with the question whether the Magistrate acts as a post office or while acting under Section 190(3) Cr.P.C. he is required to apply his mind to the question whether the case before him is exclusively triable by a Sessions Court. Section 190(3) provides for cognizance of offences by a Magistrate which he can take (a) upon receiving the complaint of facts which constitute the offence, (b) upon the report in writing of such facts made by any Police Officer and (c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been com­ mitted. It is only after taking cognizance of a case that the Magistrate has to determine whether the matter before him is exclusively triable by a Court of Session. Once he arrives at the conclusion that it is so triable, his own jurisdiction to try it ceases, and he must send the case to the Court of Session for trial. The word cognizance does not mean merely preparation to deal with the matter without application of one's mind. The language of sub-section (3) leaves no doubt that it is the duty of the Magistrate to apply his mind to the facts of the case in order to determine whether it is exclusively triable by a Sessions Court or it can be tried by another Court also. In jurisdiction of this we refer to a decision of the Supreme Court of Pakistan, which is on all fours with the point involved in this case (see PLJ 1981 S.C. 431). It was held that the Magistrate is required on having taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him, by the Police or the complainant, in order to determine whether the allegations made in the Police report, private complainant or information received by him make out a prima facie case triable exclusively by a Court of Session." It was conceded at the bar that the evidence as required by Section 8 of the Order is not forthcoming in the present two cases. We have seen the challan. It appears that in both the cases the evidence is of those witnesses only who had found, the respondents drunk and had then proceeded to take him to a Medical Officer for examination, as required by Section 12 of the Order. The cases are not obviously covered by Sections 8 and 9 of the Prohibi­ tion Order and are not exclusively triable by the Court of Session. If the Magistrate had applied his mind at the initial stage, he would have found that he too was competent to try them in which case Section 190-{3) Cr.P.C. would not be attracted. Consequently, it was beyond his jurisdiction to refer the cases to the Sessions Court. On the other hand, it was necessary for him to try the cases himself. The learned Assistant Advocate General however submitted that Section 9 of the Order, which deals with the evidence, also says that sentence can be passed on the confession of the accused made before a competent Court. This would justify the action under Section 190(3) Cr.P.C. We do not agree with the learned counsel. Section 190(3) itself is very clear on this point that the Magistrate's jurisdiction comes to an end only when he finds that the case is exclusively triable by a Session Court. He has no jurisdiction to refer the matter to the Court of Sessions merely on an apprehension that the accused may make confession. If he makes a confession before the Magistrate it is always open to him to refer the matter to the Court of Sessions. Section 347 Cr.P.C. provide that if in any trial before a Magistrate, before signing the judgment it appears to him at any stage of the proceedings that the case is,one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court for trial There is, therefore, no difficulty in the way of the Magistrate to make a reference at any stage when he finds the accused to be a confessing party. The upshot of the above discussion is that though the Police ay register a case under Section 8 of the Order alongwith or without any other Sec­ tion the Magistrate should not forward the case to the Sessions Judge unless he finds it is covered by the provisions of Sections 8 and 9 of the Order and the hadd sentence is possible to be passed on the facts evident on the face of the record. If he finds on the face of the record that the matter is covered by Section 8 or the evidence of two witnesses as required by Section 9 thereof is forthcoming, he has no option but to send the matter to the Sessions Court in which case the Session Court will have no doubt the jurisdiction to pass any other sentence, if the offence under Section 8 is not proved on trial before it. But if the required evidence be not forthcoming he should try the case himself. This procedure will prevent the flooding of Session's Court files with unneces­ sary cases. The Additional Sessions Judge was right in sending the cases back to the Magistrate at least on this point though as explained by us in the body of the judgment, we are not satisfied with the accuracy of the approach of the learned Additional Sessions Judge in other matters. In these two cases it is conceded that the evide ce as required by Sections 8 and 9 of the Order is not forthcoming. The Magistrate concerned shall try these cases himself. The revisions are decided in these terms. (TQM) Order accordingly.

PL J 1983 FSC 198 PL J 1983 FSC 198 (Appellate Jurisdiction) Present: muhammad siddiq, J NISAR AHMAD—Appellant - versus THE STATE—Respondent Criminal Appeal No. 106/L of 1982, decided on 24-2-1983. (i) Criminal Procedure Cods (V of 1898)—

S. 540—Examination of witness—Court—Power of—Acquitted coaccused—Statement of—Conviction—Basis for— Held: Technically court to be competent to examine acquitted co-accused as court witness but such power to be exercised judicially and in case evidence as originally led by prosecution proves no offence against appellant, invoking of such power for basing conviction of accused to be improper and to amount to filling gaps in prosecution case. [P. 203] A (ii) Criminal Procedure Code (V of 1898)—

S. 540—Acquitted co-accused —Examination of as court witness— Corroboration—Requirement of— Held: Statement of acquitted coaccused in same trial as court witness to require strong independent corroboration before any conviction be based on it. [P. 203] C (Hi) Criminal Procedure Code (V of 1898)—

S. 342—Accused—Examination of by court—Failure to put specific question—Effect of—Sessions Judge failing to put specific question to accused about statement of co-accused recorded as Court witness after her acquittal— Held: Such statement in no way to establish case of pro­ secution against appellant. [P. 203] £ (iv) Criminal Procedure Code (V of 1898)-

S. 164—Statement and confession—Recording of by Court—Effect of of—Acquitted co-accused making categorical statement before compe­ tent court completely exonerating appellant— Held: No value to be attached to her subsequent statement recorded as court witness. [P. 204} F (v) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10(2)— Zina —Offence of—Acquitted co-accused—Statement of— Conviction—Basis for—Solitary statement of acquitted co-accused not corroborated by any independent legal evidence— Held: Prosecution having miserably failed to establish guilt of appellant, conviction to be set aside. [Pp. 203 & 205] D & G -Administration of—Acquitted co-accused—Examination of as court witness— Held: Acquitted accused person not to be converted into court witness in same trial against co-accused except in case such course be re­ quired for justdecision. |P. 203] B Mr. Abdullah, Advocate for Appellant. Mr. Shaukat All Mehr, Advocate for the State. Date of hearing: 24-2-1983. judgment The learned Sessions Judge, Attock vide impugned judgment dated 19-10-1982 convicted and sentenced Nisar Ahmad, appellant as under:— Under Section 10(2) of the — R.I. for 5 years plus 30 stripes and a Offence of Zina (Enforcefine of Rs. 2,000/- or in default of ment of Hudood) Ordinance, payment thereof to further undergo 1979 (hereinafter referred to R.I. for one year, s the Ordinance). Under Section 363 PPC — R.I. for 3 years and a fine of Rs. I.OOO/- or in default of payment thereof further R .1. for 6 months. Both the sentences of imprisonment were ordered to run concurrently. Nisar Ahmad, appellant has challenged his conviction and sentences through the present appeal. 2. In support of its case the prosecution produced 6 witnesses. Doctor Muhammad Afzal Malik (PW.l) medically examined Nisar Ahmad, accused appellant and found him sexually potent. Lahori Masih (PW. 2) is the comp­ lainant in this case and Mst. Zamurrad acquitted co-accused and Court Witness, is his wife. He was married with her about 6 years back and had a child from her. About a year back he had gone to Peshawar in connection with his per­ sonal affairs. On his return he found his house locked. On inquiry from his neighbour about his wife, he was informed by his neighbour Nazir Masih (PW) that his wife Mst. Zamurrad has given the keys of the house to him i.e., Nazir Masih saying that she was going to bazar and that he should hand over the same to her husband, on his return from Peshawar . Accordingly he re­ ceived the keys of his house from Nazir Masih. It is further stated by the complainant that Nisar Ahmad, accused used to visit his house occasionally and since he doubted his intention for having illicit relations with his wife, he stopped him from coming to his house. When he found his wife missing from his house, the complainant suspected Nisar Ahmad, accused for having taken her away. On further inquiry he was told by Nazir Masih and Jan Masih (PWs) that they saw his wife accompanying the accused appellant. On the following day he submitted an application Ex.P.B. to his officer who forwarded the same to Police Station, Hazro, where formal FIR Ex. PB/1 was registered on 6-6-1981. His wife Mst. Zamurrad returned to his house of her own accord after about 15/16 days. The complainant informed the Police about her return and the Police took her for further proceedings. In cross-examination the complainant has admitted that one day after her return, Mst. Zamurrad was produced before the Magistrate where her statement under Section 164 Cr.P.C. was recorded. He has further admitted that in her said statement before the Magistrate, shedid state that she was not abducted or taken away by Nisar Ahmad accused but subsequently when she was taken to the Hospital for examination she told the complainant that she was taken away by Nisar Ahmad, accused. It is further admitted by the complainant that Mst, Zamurrad stated before the Magistrate that she had gone to the house of Mst. Nooran and Khushi Maseeh at Fateh Jang and she used to go to Mst, Nooran and Khushi Maseeh, when she was unmarried and Mst. Nooran was the maternal aunt of the complainant. It is also admitted by the complainant that Mst. Zamurrad had married him with­ out the consent of her parents as she was bertothed to him and her parents wanted to marry her to an old man. The complainant has further admitted that during the pendency of the case before the trial Court his wife Mst. Zamurrad had left his house after feeling annoyed with him and she remained absent from his house for many months before her arrest. It is also admitted by him that he had made a statement before the Additional Sessions Judge, when his wife had run away with someone and he promised to locate her but he did not report this incident to the Police for registration of the case. However he informed the Police about it and the Police then located her and she was detained in Jail. She was apprehended from a village in District Sargodha. He how­ever denied the defence suggestion that he had taken more money on loan from Nisar Ahmad, accused and in order to avoid his payment, he lodged a flase report against him. Jan Masih (PW. 3) is a neighbour of Lahori Masih, complainant. According to him, about a year back he was told by Nazir Masih (PW) that Nisar accused used to go to the house of complainant Lahori Masih when he was not present in his house, in order to meet his wife. Subsequently the witnesses also saw him going to the house of the complainant, when his wife used to be all alone there. The brotherhood assembled and requested Lahori Masih to stop Nisar accused from coming in his house and to restrain his wife also. He acted accordingly. About a month after the request of the brotherhood, wife of the complainant slipped away from his house with Nisar accused. In cross-examination he has admitted that Kala Masih, is the brother of the complainant, Lahori Masih and he is married to a daughter of his wife from previous husband. It is further admitted by him that he did not per­ sonally see Mst. Zamurrad accompanying, Nisar accused. He denied the defence suggestion whether the accused advanced some money by way of loan to Lahori Masih (PW). Nizair Masih (PW.4) is another neighbour of the complainant and claims to have been Mst. Zamurrad and Nisar accused talking to each other in the street, a month prior to her elopement. He told this fact to Jan Masih (PW). Then they assembled the brotherhood and asked the complainant to take care of his wife and scare away Nisar accused. It is further deposed by this witness that on the day the wife of the complainant left the house, she gave the keys of the house to him as her husband had gone to Peshawar and on his return from Peshawar the complainant inquired from the witness about the whereabouts of his wife and the witness told him that she had given him the keys of his house saying that she was going to bazar. Nazir Masih (PW) handed over the keys of the house to the complainant. According to him she had eloped with Nisar accused who wanted to marry her. In crossexamination Nazir Masih (PW) has clearly admitted that he did not see Mst. Zamurrad actually accompanying accused on the day she left the house of her husband and handed over the keys of the house to him. Khushi Masih (PW. 5) is the husband of Mst. Nooran. According to him, Mst. Zamurrad had not come to his house during the days of occurrence as she is neither related to him nor to his wife Mst. Nooran but she was known to them. In cross-examination he was duly confronted with his Police statement recorded under Sect on 161 Cr.P.C. where it was recorded that because of her loose habits the relations of Mst, Zamurrad were annoyed with her, S.I. Muhammad- Hanif (PW. 6) is the Investigating Officer. On the receipt of the application of complainant Lahori Masih (Ex. PB), he recorded the formal FIR Ex. PB/l, .prepared the site plan Ex. PC and recorded the statements of the witnesses under Section 161 Cr. P.C. On 20-6-1981 Mst. Zamurrad herself returned to the house of her husband of her own accord. She was associated with the investigation to the case and was got medically examined on 22-6-1981. The lady doctor gave him a bottle containing swabs and envelope which he handed over to MuharrirHead Cons­table for onward transmission to the office of the Chemical Examiner, Lahore . Earlier on 20-6-1981 the Investigating Officer got the statement of Mst. Zamurrad, recorded under Section 164 Cr.P.C. (Ex. DD). He arrested Nisar accused on 27-6-1981 and aho got him medically examined for his sexual po­ tency. The same day he arrested Mst. Zamurrad. In cross-examination it is admitted by the Investigating Officer that he could not find any eye-witness who actually saw the accused going alongwith Mst. Zamurrad but there was other evidence of their association and inter se relations. It is further admitted by him that in her statement recorded under Section 164 Cr.P.C., a copy of which he obtained subsequently, Mst. Zamurrad had stated that after slipping from the house of her husband, she had gone to the house of Mst. Nooran in Patch Jang. After the completion of the investigation, he challaned Nisar Ahmad appellant and Mst. Zamurrad. They were tried by Malik Abdul Majid Tiwana, Sessions Judge, Attock. Vide order dated 11-10-1982 Mst. Zamurrad was acquitted under Section 265-K Cr.P.C. and Nisar Ahmad, accused alone was charged under Section 16 of the Ordinance. 3. Nisar Ahmad, accused in his statement recorded under Section 342 Cr.P.C. denied the prosecution allegations. He however admitted that he and Lahori Masih, complainant both were employed in the Kamra Complex and knew each other. When asked why the PWs had deposed against him and why this case was made against him he stated a under:— "About three months prior to the alleged incident, Lahori Masih. had taken a sum of Rs. 200/- from me as a loan and promised to return the same after about a month but when he failed to abide by his commitment, I insisted and we fell out with each other. Jan Masih PW intervened and undertook to get the loan paid by Lahori Masih to me. He even then did not pay the money and got me falsely involved in this case." He tendered in evidence a copy of the statement of Mst. Zamurraa C.W., re­ corded under Section 164 Cr.P.C. by a local Magistrate (Ex. DD). The learned Sessions Judge vide impugned judgment dated 19-10-1982 convicted and sen fenced Nisar Ahmad, appellant as mentioned in the opening part of the judg­ ment. 4. I have heard at length the learned counsel for the parties and have also perused the entire material available on the record. 5." The occurrence in this case took place on 3-6-1981 while the formal FIR was registered on 6-6-1981. Mst. Zamurrad who initially was the abductee in this case, returned to her house of her own accord on 19r6-1981. Her statement under section 164 Cr.P.C. was recorded on 20-6-1981. She was medically examined by the lady doctor on 22-6-1981. She was arrested by the police as an accused person on 27-6-1981. She was released on bail by the Court on 2-7-1981. She was chatlaned as an accused person alongwith Nisar Ahmad accused—appellant on 8-7-1981. During the trial she failed to attend the court and consequently on 3-3-1982 the trial court issued warrants of arrest in the sum of Rs. 5.000/- against her. Even these warrants could not be execu­ ted and the court had to initiate proceedings under section 87 of the Code of Criminal Procedure and notice was also issued to her surety (her husband Lahori Masih.) She was not traceable ana her whereabouts were not known. It was on 4-10-1982 that the police succeeded in arresting and producing her before the trial court which adjourned the case to 11-10-82 for recording the prosecution evidence. By separate order dated 11-10-1982, reproduced below, the trial court acquitted Mst. Zumurrad under section 265-K Cr.P.C. On the same day i.e., 11-10-1982 the trial court recorded the statements of two P.Ws and adjourned the hearing to next day i.e., 12-10-1982 as the court time was over. On 12-10-1982 two more P.Ws were examined when the case was adjourned to 14-10-1982 for further proceedings. After examining three more P.Ws, the prosecution closed its case on 14-10-1982. On the same day i.e., 14-10-1982 the trial court examined Mst. Zumurrad as C.W. 1:— "Order". Brief facts of the case are that on 3-6-1981. Nisar accused enticed away Mst. Zamurrad co-accused from the house of her husband in Kamra Cantonment, P.S. Hazro, for purposes of illicit inter-course. The matter was reported to the police through Air Force Authorities by her husband as he was their employee and his application was forwarded to the SHO, P.S. Hazro who registered a case u/ss 11/16 of Ordinance VII, 1979, on 6-6-81, Mst. Zamurrad returned to the house of her husband of her own accord on 20-6-1981. He informed the Police about her return and the Investigating Officer produced her before the Magistrate. On the same day, he got her statement recorded u/s 164 Cr.P.C. On 22-6-1981, he got her medically examined and submitted incomplete challan as the result of the chemical analysis of her vaginal swabs was not received The same is not available on the record even now and it appears that it has not been received as yet. In any case since she returned to the house of her husband and thereafter she was arrested by the police the possibility of her husband having access to her cannot be excluded and the result of chemi­ cal analysis of her vaginal swabs becomes immaterial." In these circumstances, the charge is only to be framed against Nisar Ahmad accused under section 16 of Ordinance VII of 1979, because a woman who has been enticed away cannot, in view of the recent verdict of the Shariat Court , be prosecuted for abetment. This being so, Mst. Zamurrad is acquitted u/s 265-K Cr.P.C. The charge should only be framed against Nisar accused, as mentioned above." 6. It is in the above factual background that we have to assess the legality and value of the statement of acquitted co-accused, Mst. Zumurrad recorded as a court witness on 14-10-1982. According to the State counsel her state­ ment as court witness was recorded under section 540 Cr.P.C, No doubt section 540 Cr.P.C. confers unfettered and wide powers upon the court to summon and examine any person as a witness at any stage of any trial provided in the opinion of the court such evidence appears to be essential to the just decision of the case but it is well settled principle that wider the power, the greater the exercise of the discretion required of the court. The State counsel has not been able to point out any order 'of the trial court justifying summoning and examining Mst. Zumurrad, acquitted co-accused as a court witness in the same trial. In other words there is nothing on the record to show as to why and for what reasons, the trial court examined her as a court witness. It is alleged by the defence counsel that without her statement as court witness, there was no direct or circumstantial evidence available on the record to base the con­ viction of the appellant, but the learned Sessions Judge in order to help the prosecution followed this novel procedure by examining acquitted co-accused as a court witness in the same trial against the appellant. Technically speaking the trial court may have the power to examine Mst. Zumurrad as a court witness after her acquittal, but such power is to be exercised judicially and if the evi­ dence as originally led by the prosecution proved no offence against the appel­ lant, invoking this power under section 540 Cr.P.C. for basing conviction of the accused, is wrong and would amount to filling the gap in the prosecution case which is not permissible under the statute. The State counsel frankly concedes that after excluding from consideration the statement of Mst. Zumurrad as court witness., there is practically no evidence to justify the con­viction of the appellant. It is most un-usual and contrary to well-established traditions of justice in Islam to convert an acquitted accused person into a court witness in the same trial against co-accused, except when such course is required for the just decision of the case. In any case in the interest of fair administration of justice, statement of such a court witness in the same trial would require strong independent corroboration before basing any conviction on it. The trial court in the impugned judgment has observed that "the cir­ cumstances coupled with the statement of Mst. Zumurrad made by her as a court witness go long way to prove that the accused was having illicit liaison with her". The trial court, however has not enumerated or specifically mentioned such circumstances which could serve as corroboration in this case to establish the charge of zina against the appellant. Working of the appellant and Lahori Masih, complainant in the same organisation or the appellant earlier being on visiting terms with the complainant, would not corroborate the allegation of zina against the appellant. The source of other circumstances like going of Zummurrad and the appellant to Faisalabad and staying there in the house of the appellant's brother and committing zina with her, is again her own state­ ment. The State Counsel has not been able to point out from the record any evidence or such circumstances which could legally serve as corroboration of the statement of Mst. Zumurrad regarding the charge of zina. It may be observed that she was medically examined by the lady doctor on 22-6-1981 but the prosecution did not care to produce the said lady doctor as a witness. The lady doctor had also taken vaginal swabs and sent them to the Office of the Chemical Examiner for analysis but even the report of the Chemical Exa­ miner has not been placed on the record. Moreover in the order dated 11-10-1982 while acquitting Mst. Zumurrad under section 265-K Cr.P.C. the learned Sessions Judge himself has observed that the result of the Chemical analysis of her vaginal swabs was immaterial as the possibility of her husband having access to her could not be excluded. There is no other witness who has deposed against the appellant that he committed zina with Mst. Zumurrad. The result is that the solitary statement of Mst. Zumurrad, acquitted co-accused as court witness, has not been corroborated by any independent legal evidence worth the name. Above all no specific question about the statement of Mst. Zumurrad as C.W. 1 was put to Nisar Ahmad, accused appellant under section 342 Cr.P.C. It is well settled now that if the learned Sessions Judge wanted to use the statement of Mst. Zumurrad recorded as C.W. 1 then this question should have been pointedly asked from the accused under section 342 Cr.P.C. Thus considered from any angle, the statement of Mst. Zumurrad, co-accused recorded as C.W. 1 after her acquittal, does not in any way establish the case of the prosecution against the appellant. It is surprising that a senior judicial Officer of the rank of District and Sessions Judge, has taken such an erroneous view in this case which could not be supported or up-held on any ground. 1. There is another very important piece of evidence in this case. As mentioned above on 20-6-1981, the statement of Mst. Zumurrad was recorded under section 164Cr.P.C. by the Magistrate Ex. DD and in that statement she had completely exonerated the present appellant. This statement is reproduced below : — 20-6-1981 tin view of such a categorical statement made before a competent court comp- Fjletely exonerating Nisar Ahmad, appellant, no value can be attached to her 'subsequent statement recorded. 8. There is another infirmity in the prosecution case. Nisar Ahmad, appellant was charged only under section 16 of the Ordinance. In other words no charge under section 10(2) of the Ordinance was framed against him. It is not disputed that the offence under section 10(2) of the Ordinance is more serious than the offence under section 16 of the Ordinance. It is argued by the learned defence counsel that in the absence of any charge under section 10(2) of the Ordinance, the appellant could not be convicted under that section. The learned State counsel is not in a position to rebut this contention. 9. After taking into consideration the entire facts and circumstances of the case I am clearly of the view that the prosecution has miserably failed to es­ tablish the guilt of Nisar Ahmad, appellant. It is clearly a case of no evidence! Accordingly, I accept this appeal, set aside the convictions and sentences of| & the appellant and acquit him of the charge. He is already on bail, his bail bond shall stand discharged. (TQM) Appeal accepted.

P L J 1983 FSC 205 P L J 1983 FSC 205 (Appellate Jurisdiction) Present: Au hussain qazilbash, J IFTIKHAR AHMAD JAMAL—Appellant versus THE STATE—Respondent Criminal Appeal No. 1011 of 1983, decided on 11-5-1983. (i) Prohibition (Enforcement of Hadd) Order (P.O. 4 of 1979)—

Art. 11—Drinking liable to tazir— Offence of—Witness having no enmity with appellant finding him hurling abuses, behaving in disorderly manner at crucial time and emitting smell of alcohal from mouth— Doctor on examination finding accused irritant, unsteady and noting foul smell coming from his mouth—Chemical Examiner also detecting alcohal in Wood, urine and stomach wash of appellant— Held: Conviction of appellant being well-founded to be maintained. [Pp. 208 & 209] C & E (ii) Pakistan Army Act (XXXIX of 1952)—

S. 94—Concurrent jurisdiction of court metrial and criminal courts— Order in— Held: Concurrent jurisdiction on both court martial and or­ dinary criminal courts to try army person guilty of civil offence having been conferred, prescribed officer to have only discretion to choose forum for trial of such accused belonging .to armed forces in order to maintain army discipline— Held further: Competent Magistrate having (already) been invested with jurisdiction (to try such person), no (further) jurisdi­ ction to be (required to be) conferred on him by prescribed officer. [P. 207] A (Hi) Pakistan Army Act (XXXIX of 1952)—

S. 94 read with Criminal Procedure Code (V of 1898)-S. 549—Person belonging to armed forces—Offence by—Trial of—Accused not disclosing his correct identity before trial Magistrate—Subsequently on receipt of intimation regarding appellant being deserted from army, Magistrate making reference to commanding officer—Accused failing to bring any­ thing or record showing prejudice in trial on basis of charge framed against him before making reference to commanding officer— Held: Magistrate being under no obligation to frame fresh charge, trial of accused to be neither without jurisdiction nor bad in law. [P. 208] B (iv) Criminal Procedure Code (V of 1898)—

S.222(l)—Charge—Contents of—Charge framed against accused carry­ ing precisely all relevant material high-lighting commission of offence— Held: No miscarriage of justice having resulted, contention of charges framed against accused being vague to have no force. [P. 209] D Sardar Mohammad Ishaq Khan, Advocate for Appellant, Mr. Mohammad Aslam Uns Advocate for the State. Dates of hearing: 26-3-1983, 17/26-4-1983. judgment This order will dispose of an appeal filed by Iftikhar Ahmad Jamal son of Nazir Ahmad resident of House No. NW-510 Government College Road , Raja Sultan, Rawalpindi from the Judgment of the Magistrate First Class Islamabad dated 18-9-1982 whereby the appellant was tried and convicted under section 11 of the Prohibition (Enforcement of Hadd) Order, 1979 and sen­ tenced to 3 years R.I. with 20 stripes. The brief facts are that on the night of 12-10-1981 at about 9 Nazar Hussain A.S.I. (P.W. 7) alongwith Muhammad Siddique, Munir Ahmad and Jamil-ud-Din Constables were on their usual Ghost and when they reached Rawat Bu Adda found a person making noise, was hurling abuses and crea­ ting disorder. When empowered smell of alcohal was coming out from his mouth and on inquiry he gave his name as Iftikhar Ahmad. He was sent for his medical examination and was accompanied by Munir Ahmad and Jamil-ud- Din constables. On the receipt of the report from the Doctor he was charged under section 11 of the Prohibition (Enforcement of Hadd) Order, 1979 and proper F.I.R. was drawn, on the same night i.e., 12-10-1981 at 11. After the usual investigation the accused was put to trial where the prosecution produced 7 witnesses in support of its case. The accused in his statement under section 342 Cr.P.C. denied the charge and pleaded innocence. He was however, convicted and sentenced as stated earlier. The learned counsel for the parties heard Mr. Sardar Mohammad Ishaq Khan, Advocate for the accused has challenged the findings of the learned trial Court on the legal as well its factual aspects. He submitted that the accused is admittedly an army man and he could only be tried by the Magistrate when the provision of section 94 of the Army Act have been complied with i.e., when the relevant Prescribed Officer conferred jurisdiction on a Magistrate. The charge under section 11 of the Prohibition Order of 1979, he submitted, was framed against the accubcd on 16-12-1981 but it was only on 16-3-1982 when the Magistrate made a reference to the Officer Commanding of the accused as provided for under section 549 Cr.P.C. and was invested with jurisdiction to try the accused on 21-3-1982. Since no fresh charge was framed against the accused on or after 21-3-1982 and he was proceeded against on the basis of old charge which obviously was without jurisdiction, therefore the whole trial has vitiated and his client is entitled to acquittal, Reliance was placed on A.I.R. 1945 Madras 289. As to the factual aspect of this case he submitted that in fact the accused had neither been examined by the Doctor nor his urine, blood and stomach was were taken for analysis as is alleged by the prosecution and also hat none of the witnesses who had taken the accused to the Doctor for medical xamination and those who had in fact taken the samples from the Doctor for safe custody in the Malkhana had been produced. These lapses of he part of the prosecution, he submitted are enough to create doubt about the bona fides of prosecution case and on this ground too, his client is entitled to acquittal. 6. As to the first contention I think it has no force. It is not denied that the accused is not guilty of a civil offence and was to be tried as provided for under section 94 of the Pakistan Army Act of 1952. For the sake of con­ venience I reproduce the defination of civil offence as given under section 8(3) and section 94 of the said Act:— Section 8(3) —"civil offence" means an offence which, if committed in Pakistan would be triable by a criminal Court." Section 94: —"When a Criminal Court and a court-martial have each jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted and, if that officer instituted before a court-martial, to direct that the accused person shall be detained in military custody." What I gather from the reading of Chapter V of the Army Act which deals with offence is that it speaks of two type of offences which are committed by army personnel One is offences against the army discipline and the other is civil offences. In case a person subject to the Army Act, is accused of an offence against the army discipline he is tried by a Court martial. But where an army man is guilty of a civil offence it is not necessary that he should be tried by the Court Martial. To meet such an eventually the Army Act under section 94 has conferred concurrent jurisdiction on both the court martial and ordinary criminal court to try a army person guilty of a civil offence. Section 94 ibid has, however, only given a discretion to the Prescribed Officer to choose a forum for the trial of an accused belonging to the armed forces. This choise has perhapes been given to him to maintain army discipline. Therefore, the question of conferment of any jurisdiction by the Prescribed Officer on a Magistrate does not arise because the competent Magistrate has been so in­ vested by the law itself. I am, therefore, not inclined to agree with the proposi­ tion propounded by the learned counsel for the accused that a Magistrate assumes jurisdiction only when the Prescribed Officer so decides since both the Magistrate and the Court Martial have concurrent jurisdiction to try an army personnel guilty of a civil offence. The authority reported A.I.R. 1945 Madras 289 relied upon by the learned counsel for the accused is not applicable inasmuch as in the reported case., no reference was made by the Magistrate under section 549 Cr.P.C. whereas in the instance was such a reference was made. 7. Now let us examine, whether in the given circumstances, the trial of the accused prior to 21-3-1982 was bad in law. The accused was apprehend ed by the Ilaqa police on 12-10-1981 and after investigation was put to trial on 16-12-1981 when he was charged under section 11 of the Prohibition Order of 1979. I the eantime he was enlarged on bail on 4-2-1982 and the case remained pending in the Court of Magistrate for one reason or the other. The perusal of the record shows that it was on 6-3-1982 when for the first time the mother of the accused submitted an application to the court of the Magis­ trate who was trying the case that her son was a deserter from the army but has re-joined the army and therefore, he should be exempted from appearance in the Court. No sooner the Magistrate received the said application he made a reference to the Commanding Officer as required under section 549 Cr.P.C. This letter is dated 16th of March, 1982 addressed to the Com­ manding Officer 1 Basic Trg Bn EME Bang (Mangla Cantt) which is as follows:— "Subject:— Case against Iftikhar Ahmad Jamal son of Nazir Ahmad case F.I.R. o. Ill dated 12-10-1981 under section 11 of Prohibition of Hadd '"[Sic], (Enforcement of Hadd) Order 1979 of P.S. Sihala Islamabad Reel Gun Ftr No. 2983014 Iftikhar Ahmad Jamal is required as an accused in the sub­ ject case. You are requested to clarify whether the case will be tried by the Court martial or by this Court, as required under section 549 Cr.P.C. An early reply in this regard is requested." In response to the above letter the Officer Commanding vide his letter dated 21-3-1982 replied as under:— Subject:— Case against Iftikhar Ahmad Jamal Sjo Nazir Ahmad case FIR No. Ill dated 12-10-1981 under section 11 Prohibition of Hadd (Enforce­ment of Hadd) Order 1979 of P.S. Sihala Islamabad; Your Itf. No. 104/ /O.M. dated 16th Mar 1982 refers. No. 2983014 Reel Gun Ftr Iftikhar Ahmad Jamal can be produced for trial as and when required by your Court. The individual is undergoing trg in this bn, hence it is requested that the dates on which the individual is required may be intimated to this office." It was then that the rest of the proceeding such as the recording of the evidence of the witnesses of the prosecution and the statement of the accused were done and the judgment pronounced. The perusal of the record of the investigation and the Court proceeding prior to 6-3-1982 shows that during all this period the accused had not given even an inkling that he was an army man. In all probability the accused at the time of occurrence was a deserter from the army, therefore his silence about the disclosure of his correct identity is quiet under­ standable. In the absence of such an information, how on earth, the investi­ gation agency or for that matter the Court could have proceeded under the provision of section 549 Cr.P.C. Since the Magistrate under section 94 of the Army Act had the jurisdiction, therefore, under the circumstances explained above he was not obliged to frame a fresh charge, moreso, when the accused B had failed to bring anything on the record to show that he has been prejudiced in his trial on the basis of the charge framed against him on 16-12-1981. I, therefore, hold that the trial of the accused by the Magistrate is neither without jurisdiction nor bad in law. 8. As for the factual aspect of the case is concerned I do not find any short­ comings in the case of the prosecution. Besides Mazhar Iqbal (P.W. 5) and Bashir Ahmad (P.W. 6) the prosecution has pressed into service the evidence of Doctor Ghulam Mahboob (P.W. 1) and the report of the Chemical Examiner which is Ex-PG. Mazhar Iqbal and Bashir Ahmad are independent witnesses. Both of them had seen the accused at the crucial time hurling abuses and be­ having in disorderly manner. They have stated at the trial that the accused was emitting smel! of alcohal from his mouth. There is nothing on the record even suggest that these witnesses were deposing against the accused because of some enmity. The occurrence is alleged to have taken place a 9-00 p.m. and the accused was taken to the polyclinic Hospital Islamabad where he was examined by Dr. Ghulam Mahboob (P.W. 1) at 10 p.m. According to Dr. Ghulam Mahboob at the time of examination the accused was making noise, was irritant, unsteady and foul smell was coming from his mouth. His ten­ tative opinion was that the accused was drunk. He took his blood, urine and stomach wash and sent the same to the Chemical Examiner for his opinion who vide Ex-PG confirmed that alcohal is detected in all the above articles. Though there are certain lapses in the case on the part of the prosecution, for instance Muzaffar Iqbal and Jamil-ud-Din constables who had taken the accused for medical examination to the Doctor have not been produced at the "(Sic] trial; and while recording the statement of the accused under section 342 Cr. P.C. the Court did not question the accused his medical examination on the night of occurrence or the taking of his blood, urine and stomach wash (which this Court did at the time of hearing of the appeal on 17-4-1983 and to which the accused replied in negative), yet I do not find them very material because again nothing has been brought on the record to show that the accused has been falsely implicated in this case. The contention of the learned counsel that the charge framed against the accused was vague and did not fulfil the requirements of section 222(1) Cr.P.C. which was resulted in mis-carriage of justice would also not prevail with me because the charge frmaed against the accused carries precisely all the relevant material high-lighting the commission of the offence. 9. In view of the above, I hold that the conviction of the accused under,'£ section 11 of the Prohibition Order is well founded and the same is maintained. As the quantum of sentence. I am informed by the learned counsel for the accused that the accused has been dismissed from service and prayed for the reduction of the sentence, I think this prayer seems reasonable and therefore, I reduce his sentence of imprisonment one from 3 years R.I. to 2 years R.I. The sentence of lashes is also reduced to 10. He is also given the benefit of sec­ tion 382 (b) Cr.P.C. With the above modification the appeal stands dismissed. (TQM) Appeal dismissed.

P L J 1983 FSC 209 P L J 1983 FSC 209 (Appellate Jurisdiction) Present : aftab hussain, C.J. Mst. EHSAN BEGUM—Appellant versus THE STATE—Respondent Criminal Appeals No. 24/P & 28/P of 1982, decided on 3-5-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10 (2)— Zina —Offence of—Proof of—Evidence of—Evidence of eye-witnesses or even circumstantial evidence of persons having seen both appellants closeted together during night in same room of hotel produced— Held: Offence of Zina not proved in circumstances. [P. 213] D (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S.10(2)-Zwa—Offence of—Chemical Examiner-Report of—Relevancy of—Appellant, married lady living with her husband till less than 3 days before her arrest— Held: Possibility of semen found on her shalwar being that of her husband having not been ruled out, report of chemical ex­ aminer to have no relevancy. [P. 213] E (Hi) Pakistan Penal Code (XLV of I860)—

Ss. 406 & 411—Criminal breach of trust and dishonestly receiving stolen property—Offences of—Held: Appellant convicted first under S. 406 for breach of trust of money entrusted to her by her husband not to be legally convicted under S. 411 for keeping that money with her. [P. 2\] A (iv) Handwriting Expert— ——-Evidence of—Conviction—Basis for— Held: No conviction to be maintained only on evidence of handwriting expert.—Criminal Trial— Evidence—Conviction. [P. 212] B (v) Pakistan Penal Code (XLV of I860)—

S. 406—Criminal breach of trust—Offence of—Evidence as well as ad­ mission establishing appellant having taken along with her Rs. 60,000/-, clothes and ornaments— Held: Appellant having intended to appropriate trust and having already appropriated part of it, case of breach of trust established against her. [P 213] F (vi) First Information Report—

Delay in—Explanation for—Both appellants seen going together by witnesses—One of accused also taking big sum of money belonging to complainant in addition to ornaments and clothes— Held: Explanation of complainant regarding his having been searching for accused persons to be no reasonable explanation for delay. [P 213] C (vti) Justice—

Criminal justice—Administration of— Held: Courts not to act upon con­ jectures in administration of criminal justice. [P. 214] G Mr. M. Munir Khan, Advocate assisted by Mr. Attaullah Khan, Advocate for Appellants. Sahibzada Akhtar Munir, Asstt. Advocate General for the State. Date of hearing: 3-5-1983. JUGDMENT The two convicts namely, Mst. Ehsan Begum and Zaman Shah filed separate appeals against the order dated 13-7-1982 passed by Mr. Muhammad Salim, Additiona Sessions Judge, Peshawar . I propose to dispose of these appeals together by this order. The learned Additional Sessions Judge ocnvicted Mst. Ehsan Begum and Zaman Shah both under different Sections of the Pakistan Penal Code as well as the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He sentenced Mst. Ehsan Begum under Section 406 PPC to one year R.I. and Rs. 9,000/- as fine (in default 6 months S.I.), under Section 411 PPC to one year R.I., under Section 10(2) of the Ordinance VII of 1979 to five years' R.I. and thirty stripes and under Section 16 of the same Ordinance to five years' R.I. and five stripes. He sentenced Zaman Shah under Sections 406/109/34 PPC to one year's R.I. and Rs. 9,000/- fine (in default 6 months S.I.); under Section 411 PPC to one year's R.I.; under Section 419 PPC to one year's R.I., under Section 10(2) of the Ordinance to five years' R.I. and thirty stripes; and under Section 16 thereof to five years' R.I. and 15 stripes. All the sentences were ordered to run concurrently except the sentence passed in default of payment of fine. The prosecution case is that on the 28th of April, 1979, Zaman Shah abducted Mst. Ehsan Begum, who took with her ornaments, clothes as well as Rs. 60,000/- belonging to the complainant Azam Khan P.W. 7, her husband. They stayed first in Tashfeen Hotel, Rawalpindi , and then went to Murree where both of them stayed in Hotel Gulbarg. On the 30th of April, 1979 the Police arrested both the appellants from Gulbarg Hotel of Murree and re­ covered from the possession of Mst. Ehsan Begum a sum of Rs. 42,950/-, some clothes as well as ornaments. This recovery was made by Sultan Muhammad Khan, ASI (PW. 10) in the presence of Khan Afsar, P.W. 11, who belongs to Murree and Mst. Jamila, lady Constable (PW. 12). The Investigating Officer took into possession the register of Gulbarg Hotel which contains the entries of guests staying there. The entry was signed by Zaman Shah in the pseudo name of Liaqat Khan son of Akhtar Khan. It may be stated that the first information report of this offence of ab­ duction which is said to have taken place in the morning of 28th of April 1979 before 11 a.m. was recorded in the Police Station at 10-40 p.m. the same day. The two sisters of Zaman Shah namely Saeeda Begum and Jehan Begum were named in the first information report although there is absolutely no case against them. They were arrested and they furnished on being questioned, the infor­ mation about the whereabouts of Zaman Shah in Rawalpindi . It is not necessary to give all the details of the bulky evidence on the record, which is not very helpful since it is clear that the evidence which could have brought home the guilt to the two appellants was not produced and even the witnesses produced have not been examined on many aspects which could pr^ve the offence against them. It is very strange that a person should be convicted twice once under Section 406 and again for an offence under Section 411 PPC Mst. Ehsan Begum was convicted first under Section 406 which is itself a substantive offence for breach of trust of money entrusted to her by her husband. She could not legally be convicted under Section 411 PPC for keeping that money with her. The conviction and sentence of both the appellants under Section 411 PPC is, therefore, set aside. Zaman Shah, appellant was convicted under Section 419 PPC, because he is said to have cheated the Hotel management by giving his name wrongly as Liaqat Khan son of Akbar there and by making incorrect entry of that name in the Hotel register. The only evidence on this point is that of the hand-writ­ ing Expert Zahir Gul P.W. 1, who stated that the writing on the register corncompared with the specimen signatures. The lessee of the Hotel, who is running it namely Syed Yaqoob Shah P.W. 15 was produced in Court to prove a recovery memo which does not advance the prosecution case. It is the re­ covery memo of a purse containing Rs. 889, Identity Card, some clothes and a wrist watch belonging to Zaman Shah. No question was put to him whether Zaman Shah, appellant had written his name as Liaqat or Akbar or had signed the relevant entries on the register. No other witness has been produced in support of that assertion in Court. The result is that we are left with the sole evidence of the Handwriting Expret. It is an established proposition that not conviction can be maintained only on such Expert evidence. The charge) " under Section 419 also fails. 10. There is no evidence worth the name which may bring home the charge under Section 16 against either of the appellants. Section 16 of the Ordinance provides that whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished under that section. There is no evidence of either enticing away or taking away in the sense that some type of offer emanated from Zaman Shah. The only evidence on the point of their going together is that of two Waj-takkar witnesses, namely, Adam Khan (PW. 8) nephew of A/am Khan, complainant, and Akbar Khan (PW. 9), his servant. It is stated that Akbar Khan was sent by Azam Khan to bring his meals from his house and he had gone for that purpose from the shop of Azam Khan to his house. In the way he met Adam Khan also. Both of them saw Mst. Ehsan Begum and Zaman Shah going together in a rickshaw alongwith the two children of Mst. Ehsan Begum Akbar Khan went to the house of Azam Khan, took articles of food from there and went to the shop of Azam Khan where he gave him this infor­ mation Azam Khan rushed to his house and found not only his wife absent but also the money and the ornaments missing from the box. The evidence of Waj-takkar witnesses has not impressed me at all. In reply to cross-examination question, Akbar Khan, who is said to have noticed the appellant going together in the rickshaw, stated that the rickshaw was coming from behind him, which makes it doubtful that he had seen the persons iding the rickshaw. There is also some contradiction in the statements of these two witnesses, since Azam Khan stated that he did not notice whether Mst. Ehsan Beeum had tried to draw his attention, but Akbar Khan is very clear in this resoect and he stated that "it is correct that PW Adam Khan was called for hero from the rickshaw. Accused Mst. Ehsan Begum asked for help from the rickshaw". Both the witnesses were chance witnesses. This story is not believable. The first information report was also delayed and there is no reason­ able explanation for this delay. The only explanation is that the complainant had been searching for accused persons. This explanation is not reasonable in the circumstances of this case, in which not only according to him, two of the witnesses had seen these two persons going together, out of whom one (his wife) had also taken a big sum of money amounting to Rs. 60,000 which be­ longed to him in addition to the ornaments and clothes. In the natural course !of events he should have rushed to the Police Station. I am, therefore, of the view that no offence under Section 16 of the Ordinance is proved against Zaman Shah appellant. I am really surprised that the learned Sessions Judge convicted Mst. Ehsan Begum under Section 16 for her own abduction. If she was a party to her abduction, it would clearly show that it could merely be a case of elopement. Mst. Ehsan Begum in her own statement has attributed her departure from the house to a second marriage of Azam Khan with some other lady, but it is clear from the statement of Azam Khan that a day prior to her departure, there was some quarrel between the husband and the wife. The possibility cannot therefore be excluded that she left the house alongwith money belonging to her husband on account of that quarrel This further re-inforces my decision that no case under Section 16 of the Ordinance is made bout in this case. 15 There is no evidence to bring home the guilt under Section 10 of the Ordinance to either of the appellants. It is said that both of them stayed in Tashfeen Hotel, Rawalpindi on the 28th of April, 1979. Abdul Jalil Qamar (PW 19) and Abdul Razaq (PW. 20), who are connected with the Hotel were produced for this purpose. In the register of Hotel Tashfeen the name of Zaman Shah is clearly recorded, but there is nothing in the evidence of these two witnesses that Mst. Ehsan Begum was with Zaman Shah or had stayed in that hotel. In the absence of such identification, their evidence is not of any consequence. 16. It is then said that both the appellants stayed in the same room in Gulbarg Hotel on the night between the 29th and 30th of April, 1979. Entry in the Hotel register is in the name of Liaquat Khan. Syed Yaqoob Shah (PW. 15), who runs the Hotel, neither proved the above entry of Zaman Shah nor made a statement that the appellants stayed together during the night in the same room. In cross-examination only a bare statement of their stay in the Hotel is made. In order to prove that they had committed the offence of zina it was necessary either to prove the offence by the evidence of eye-witnesses, or atleast the circumstantial evidence of persons who had seen them both closetied together during night in the same room of the Hotel. No such evidence was produced. The only circumstance relied upon by the learned Assistant Advocate General is of the report of the Chemical Examiner on the vaginal swabs as well as semen stains on the shalwar of Mst. Ehsan Begum but this is not relevant for the simple reason that Mst. Ehsan Begum is a married lady and had been living with her husband till less than 3 days before her arrest and the possibility that the semen may be of her own husband cannot be ruled out. At this stage, reference may be made to the statement of Ahmad Mustafa, Chemical Examiner P.W. 13 who had examined semen stains on the shalwar. In cross-examination he stated that chemical examination as well as Serology could determine the person to whom the seminal stains belonged. He stated that he had himself examined these cases for grouping purposes to find out whether seminal stains belonged to the accused but in the present case, this was not done, because it is not possible to give the grouping without the specimen of the suspected person. P.W. 17 Doctor Khalid Mahmood, the other Chemical Examiner, who had examined the vaginal swabs also stated that grouping could be done but this was the function of the Serologist. If there had been evidence based on grouping that the seminal stains on the shalwar or on the vaginal swabs were of Zaman Shah it would have been sufficient for convicting both the appellants under Section 10 for commission of the offence of zina. In the absence of such evidence however, this cannot be done. The case under Section 10 is not proved on the record. Mst. Ehsan Begum had taken away with her ornaments, clothes and Rs. 60,000 out of which a sum of Rs. 42,950 has been recovered on the 30th of April, 1979 from her possession. The clothes and ornaments definitely be­ longed to her as stated by Azam Khan in his own statement. Mst. Ehsan Begum admitted in her statement under Section 342 Cr.P.C. that the money which was recovered from her belonged to her husband and it was kept in trust with her. The case of Azam Khan is that he had kept with her a sum of Rs. 60,000 which he had secured from the sale of his shop. Mst. Ehsan Begum admitted that she had Rs. 60,000/-, but she stated that only the amount recovered from her belonged to her husband and whatever she had spent belonged to her, This evidence and admission is sufficient to establish that a sum of Rs. 60,000 was entrusted by Azam Khan PW to his wife which she had taken away with her on leaving the house alongwith her clothes and ornaments. The way in which she had left proves that she intended to appropriate what was in trust with her and had already appropriated part of it. The case of breach of trust is, therefore, established against her. She has been rightly convicted under Section 406 PPC. The sentence against her is also not severe under that section. Her appeal to that extent is dismissed. 21. The only question that remains for consideration is whether a case under Section 406/109/34 has been proved against Zaman Shah, appellant. There is no evidence whether Zaman Shah spent any amount out of the sum of Rs. 70,000. There is no evidence to connect the appellant Zaman Shah with this offence either. We cannot act upon conjectures in the administra- Ition of criminal justice. There must be sufficient evidence to prove each charge. [The order of conviction and sentence under the above Sections must also be set aside. The upshot of the above discussion is that the appeal of Zaman Shah is allowed and he is acquitted of all the charges. He shall be released forthwith if not required in any other case. " The appeal of Mst. Ehsan Begum is allowed against her conviction and sentence under Sections 10 and 16 of the Ordinance and Section 411 PPC and the conviction and sentence under those Sections is set aside. However, her appeal against her conviction and sentence under Section 406 PPC is dis­ missed. She shall be taken into custody. Before parting with this case I would like to observe that the Police investigation in this country is not keeping pace with scientific developments. If facilities for grouping of semen be available, as indeed they are, it is not understandable why the Medical Officers examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina or Zina bil-Jabr. The Police Officers in their reference to the Medical Officers should also in such cases invariably request the Doctor concerned to take the specimen of semen of the male accused. They should send them for chemical examination and Serology alongwith vaginal swabs and clothes/cloth etc., having seminal stains. Copies of the judgment be sent to the Secretary Interior, Secretary Department of Law, Home Secretaries and the Inspector Generals Police of the Provinces. (TQM) Order accordingly.

PL J 1983 FSC 214 PL J 1983 FSC 214 (Appellate Jurisdiction) Present: zahoor-ul-haq & muhammad siddiq, JJ MUHAMMAD TUFAIL—Appellant versus THE STATE—Respondent Criminal Appeals No. 18/1 & 98/1 of 1983, decided on 9-5-1983. (!) Pakistan Penal Code (XLV of I860)—

S. 377—Sodomy—Offence of—Defence failing to shake credibility of victim (minor boy of 9/10 years at relevant time) despite lengthy crossexamination—Such statement of victim fully corroborated by independent eye-witness, medical evidence and report of chemical examiner—Accused also not shown to have been falsely implicated due to any enmity— Held: Guilt of appellant established beyond any shadow of doubt. [P. 222] F (ii) Pakistan Penal Code (XLV of I860)—

-S. 377—Sodomy—Offence of—Substitution—Allegation of—Allegation of substitution of accused supported by no direct or circumstantial evidence— Held: There being no mistaken identity about real offender in day time occurrence and even (otherwise) no serious enmity between par­ties having been shown, substitution in case to be rather difficult. [P. 220] B & C (iii) Pakistan Penal Code (XLV of I860)-

S. 377—Sodomy—Offence of—Male organ—Erection of— Held: Sexual act not to be possible without erection of male organ but non erection of male organ on manual stipulation may be due to psychological and other factors like fear temporarily—Accused in case not shown to be really impotent or incapable of performing sexual act at relevant time— —Symptoms mentioned by Doctor in his observation clearly supporting his conclusion regarding fitness of accused to perform sexual act— Held: In absence of any material (to contrary) on record, opinion of doctor not to be differed with legal justification. [Pp. 221] D & E (iv) Constitution of Pakistan , 1973—

Art. 189—Decisions of Supreme Court—Binding nature of— Held: Any principle enunciated by Supreme Court to be constitutionally bind­ ing upon Federal Shariat Court . [P. 222] G (v) First Information Report—

Delay in lodging of—Effect of—Complainant being Kammi of village community facing difficulties in lodging case of unnatural offence against accused and first getting victim medically examined by doctor—Delay also not shown to have been used for fabricating false case— Held: Delay satisfactorily explained and in no way prejudiced case of defence— Criminal Procedure Code (V of 1898)—S. 154 & Pakistan Penal Code (XLV of I860)—S. 377.. [P. 220] A Cr. App. No. 18/1 of 1983 Malik Rab Nawaz Noon, Advocate for Appellant. Mr. Aslam Uns, Advocate for the State. Cr. App. No. 98/1 of 1983 Mr. M. Bilal, Advocate assisted by Mr. I.R. Lodhi, Advocate for Appellant. Malik Rab Nawaz Noon for Respondents. Dates of hearing: 25/26/27^4-1983. judgment Muhammad Siddiq, J.—Mian Muhammad, complainant lodged the first Information report Ex. PF with Police Station Daud Khel, alleging therein that on 7-4-1982 at about 4/5 P.M. his grand son, Muhammad Zubair PW, aged abput 9/10 years, following his aunt Mst. Hajra, was going to the fields, when he reached near tube-well Rustam Wala, Muhammad Tufail, accused stopped him and took him to a nearby wahn, after pitting one hand on his mouth. The accused removed the shalwar of Muhammad Zubair PW and started com­ mitting un-natural offence with him. Muhammad Zubair PW felt pain and therefore raised alarm which attracted Muhammad Amin and Abdullah PWs to the place of occurrence. Seeing these persons Muhammad Tufail, accused made good his escape. After getting the medical examination of Muhammad Zubair PW, the complainant lodged the first information report with the Police. 2 In support of its case the prosecution produced 6 witnesses. Doctor Muhammad Mushtaq Ahmad M.O. Civil Hospital, Kala Bagh (PW. 1) on 8-4-1982 at 6-30 P.M. examined Muhammad Zubair PW and found the follow­ ing injuries on his person:— 1 "A linear tear 1/2 c.m. x 2 m.m. on the posterior margin of anus. Anal edge was swollen. No seminal or blood-stains were found on the clothings or the body. 2. An abrasion 1 c.m. x 1. c.m. on the back of right elbow joint. It was slightly septic." Three anul swabs were taken from the anus of the victim, sealed in a container, signed by the doctor and were handed over to the complainant for sending the same through the Police Station Daud Khel, to the Chemical Examiner, Lahore for detention of human blood and semen. The injuries were simple in nature and were caused within the duration of 24 hours. Injury No. 1 was caused with blunt Weapon or male sexual organ. Injury No. 2 was caused with a blunt weapon. While handing over the swabs to the complainant, the doctor had written a latter to the Chemical Examiner, Lahore , copy of which is Ex. PB. The doctor received the report of the Chemical Examiner Ex. PC., according to which the swabs were found stained with semen proving that sodomy was committed against Muhammad Zubair PW. The doctor gave his opinion Ex. PD that sodomy was committed against Muhammad Zubair PU. 3. The same doctor on 10-4-1982 examined Muhammad Tufail, accused and made the following observations:— "1. His mental health was normal. 2. His physique was thin and normally developed according to his age. His external organs of generation were normally developed. There was no growth of hair on the face, lips and the chest. There was scanty, thin growth of black hair on the axilla and pubes. He had 28 permanent teeth in his mouth. 7 His penis showed no erection on manual stimulation of the organ. In my opinion he was 15 to 16 years old. He had reached the stage of puberty. He was physically and mentally fit to perform the sexual act. Ex. P.E. is my report" In cross-examination the doctor stated that he gave his opinion that sodomy had been committed upon the victim on the basis of the report of the Chemical Examiner. He further admitted that had the report of the Chemical Examiner been negative, he would have said that it was a doubtful case. It is f irther stated by the doctor that if the surface is hard and force applied on the victim, then there is every chance that the victim would receive injuries on knee, lips and front part of the body. Injury No. 2 could be due to hard surface. The doctor however, could not say what position was adopted by the accused while committing sodomy with the victim. It is further deposed by this witness in cross-examination that he had no source to contact the Police Officer and therefore had handed over the swabs to the private party after duly sealing them. He denied the defence suggestion that he was deposing at the instance of complainant party and that the report was false. The complainant Mian Muhammad (PW. 2) has stated that Muhammad Zubair, victim is the son of his nephew and since his father Allah Ditta had died there­ fore Zubair was living with him. On the day of occurrence at about degarwela, Mst, Jajra the aunt of Zubair P.W. had gone out to bring fodder and Zubair PW also went after her. On the same day at about sun-set time, Muhammad Amin and Abdullah PWs brought Muhammad Zubair to him telling him that Muhammad Tufail, accused had committed un-natural offence with Zubair in a Wahn and the accused had run away. The following day at about 9/1C a.m. the complainant took Muhammad Zubair PW to the Hospital Kala Bagh for medfeal examination. At about 6 or 7 P.M. on the same day Muhammad Zubair was medically examined and the doctor gave him one report and sealed parcel for delivery to the Police. The complainant then went to the Police Station and delivered the same intact to the Police. He lodged the Report Ex. PF, In cross-examination he was confronted with Ex. PF. He stated that he did not know if one Sanaullah the maternal uncle of the victim was accused of illicit relations with one Mst. Muridan, the cousin of the accused. He denied the defence suggestion that Mst. Zaivar Khatun was murdered on account of said Sanaullah's alleged illicit relations with Mst. Muridan. He further denied any knowledge if one Sanauliah had been challaned in that case and whether the said Sanaullah was a relative of Muhammad Amin PW. He further deposed that Police Station Daud Khe! would be at a distance of 6 miles from the place of occurrence and Daud Khel comes on the way when pro­ ceeding to Kala Bagh,. He denied the defence suggestion that he had gone to the Police Station for reporting and discussed the affair with his friends and well-wishers and then took the victim to the doctor on the following day. He however admitted that he was advised by the friends and well-wishers to first go to the Medical Officer and then to the Police Station. He'contacted the Compounder who took him to the doctors. He denied the defence suggestion thai he had. procured the medical report by illegal gratification. He further denied the defence suggestion that Tufail, accused was falsely implicated on account of the alleged enmity between said Sanaullah and the relatives of Muhammad Tufail, accused. It is also denied that the accused was invdlved as he had some enmity with Muhammad Amin PW Muhammad Zubair (PW. 3) was about 9/10 years of age at the relevant time. The trial Court before ad­ ministering oath and recording his statement, asked certain questions from the witness. From the answers given by the witness, the trial Court was satis­ fied that the witness was intelligent enough to answer the question put by the Court and therefore was examined as a prosecution witness after administering oath to him, Muhammad Zubair has deposed in examination-in-chief that his father is dead and Mian Muhammad, complainant is his grand-father. He was living in Thatti with his grand-father, Mian Muhammad, complainant. Mst. Hajran was his aunt (^-L.) who had gone to bring fodder and he had gone to help him. At about degarwela when he had reached near tube-well Rustam Wala, Muhammad Tufail, accused suddenly appeared there, caught hold of him and forcibly took him. to Wahn where he laid him naked after removing his shalwar and committed un-natural offence with him. Muhammad Amin and Abdullah PWs were attracted by his cries. Tufail, accused then decamped. Amin and Abdullah PWs then took him to his grand-father. The following day he was taken to Civil Hospital Kala Bagh, where he was medi­ cally examined. The complainant then went to the Police Station to logde the report. In cross-examination he denied the defence suggestion that one Javed was also there at the time of occurrence. The witness also had little bleeding and was not in a position to walk. He admitted that he had one ma­ ternal uncle whose name was Ibrahim and Sanaullah was his son. Muhammad Amin (PW. 4) is the eye-witness of the occurrence. He has deposed that on the day of occurrence at the relevant time he was going towards his land when he saw Tufail, accused committing un-natural offence with Zubair, victim who was raising cries. Abdullah (given up PW) was also with him. On seeing them the accused ran away. The witness then took the victim to Mian Muhammad PW who is grand-father and told him the whole story. The witness has ad­ mitted in cross-examination that Sikandar was his maternal grand-father (Uli) and Roshan was his brother. Sarfaraz is son of Roshan and Mst. Khan Zadi is the daughter of said Sarfraz. Niamatullah is son of said Khan Zadi. Niamatullah is involved in a murder case of Mst. Zewar Khatun. The naem of the wife of the witness was Mst. Waziran, daughter of Muzaffar, who is his maternal uncle. It is admitted by this witness that Mst. Zewar Khatun de­ ceased was cousin of Tufail accused but he does not know whether Tufail accused, his father and his uncle are PWs in that murder case against Niamat­ ullah. He further does not know whether Sanaullah son of Abdullah was accused of illicit relations with one Mst. Muridan and whether said Mst. Muridan was wife of one Ghulam Rasool. The witness claims to have seen the accused and the victim in compromising position and there was blood around the anus of the victim. The witness denied the defence suggestion that he was falsely deposing against the accused as there was enmity between him and the accused party. It is further denied by him that since one Niamatullah is in­ volved in a murder case, he was deposing against the accused. The witness categorically sated that he had never seen Niamatullah and he could say on talaq that he was stating correctly. S.H.O. Muhammad Akram (PW. 5) is the Investigating Officer in this case. He was S.H.O. Police Station Daud Khel at the relevant time. The complainant Mian Muhammad reported the case to him and on his dictation he wrote down the FIR Ex. PF. On the same day and time Mian Muhammad, complainant handed over to the Police one parcel containing swabs and a sealed envelope and both were taken into posses­ sion vide Ex. PG. The Investigating Officer visited the spot, prepared the site plan Ex.PH recorded the statements of the witnesses under Section 161 Cr.P.C. and arrested the accused on 10-4-1982. Ghulam Habib Naib Muharrir had made entry in the relevant register No. 19 against serial No. 51, which he handed over to him on 8-4-1982. According to the said entry in the register these parcels were entrusted to Esab Khan F.C. (PW) on 11-4-1982 for onward transmission to the Chemical Examiner, Lahore . In cross-examination this witness admitted that register No. 19 was not prescribed register provided by the Stationery Department, Government of Punjab, Lahore . In fact he had no register and had made that register himself. The entries however, in that register were in accordance with the prescribed form and the register had been started much earlier than this case. The entries and the said register had been checked by the Superintendent of Police but it had not been signed or initialled by any superior Officer to certify that since the proper register had not been furnished by the Government as such this register could be maintained. He denied the defence suggestion that Register No. 19 was not prescribed by the Government and he made it for his convenient's sake but in fact this register was prescribed in the Police Rules. This Police Officer further denied the defence suggestion that the parcels were not handed over to the foot Constable for onward transmission to the Chemical Examiner and that Mian Muhammad PW had not given him the two parcels and that is why he had not made the entries in the daily diary. It is also stated by this witness that he had been informed by the doctor on telephone that he was sending parcels but he had not entered this telephonic message anywhere in the daily diary and he had thought not essential to verify from the doctor about the authenticity of the Seal on the parcels. He denied the defence suggestion that the swabs were not genuine and had been planted in order to support the prosecution version. He has further denied the defence suggestion that one Javed son of Shah Wali was molesting the boy at the stating time and place and not the accused. Esab Khan F.C. (PW. 6) on 11-4-1982 received on parcel and envelope duly sealed from Muhammad Hayat Muharrir and delivered the same in the office of Che­ mical Examiner, Lahore on 13-4-1982 intact. Report No. 11 in daily diary relates to his departure and contains his signatures. In cross-examination this witness denied the defence suggestion that he had not taken the parcels re­ lating to this case. The Public Prosecutor gave up Abdullah PW and Sikandar SI as unnecessary and tendered in evidence report of the Chemical Examiner, Ex. PC and closed the evidence. 4. Muhammad Tufail, accused in his statement recorded under Section 342 Cr.P.C. denied the prosecution allegations. When asked why this case was made against him, he stated as under:— "I have been falsely implicated in this case due to enmity. Sana-ullah maternal uncle's son of Zubair victim had illicit relations with my cousin Mst. Muridan. We wanted to catch hold of Sana-Ullah and wanted to teach him a befitting lesson on the day of occurrence. He, however, managed his escape and I was involved in this case. We do not have any other enmity with the complainant." The accused produced in defence a certified copy of the report under Section 173 Cr.P.C. Ex. DB, Muhammad Tufail, accused was tried by the Sessions Judge, Minawali, who charged him under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordi­ nance) as well as under Section 377 PPC. The trial Court vide impugned judgment dated 19-7-1982, acquitted Muhammad Tufail, accused under Section 12 of the Ordinance but found him guilty under section 377 PPC and sentence him to undergo R.I. for two years and a fine of Rs. 2,C03, or in default of pay­ ment of fine further R.I. for 6 months. The convict has challenged his convidion and sentences through criminal appeal No. 18/1 of 1982 while Muhammad Zubair PW has filed a separate criminal appeal No. 98/1 of 1983 praying that the conviction of Muhammad Tufail accused may be altered from Section 377 PPC to one u/s. 12 of the Ordinance and suitable punishment may be awarded to him in accordance with law to meet the ends of justice. This appeal was duly admitted, for regular hearing vide order dated 30-10-1982 and notice of this appeal was duly served upon Muhammad Tufail convict. Since both these appeals arise out of the same impugned judgment, they shall be disposed of by single judgment. We have heard at length the learned counsel for the parties and have aiso perused the entire material available on the record. It is vehemently contended by Mr. Rab Nawaz Noon, Advocate, the learned counsel for Tufail, convict that delay in lodging the FIR has not been satisfactorily explained. In reply the learned State counsel has argued that in the circumstances of the case the delay has been explained, Zubair, victim in this case is a minor/orphan. Zubair, victim is the son of the nephew of Mian Muhammad complainant. The occurrence had taken place at about 5 P.M.' on 7-4-1982. It was in the evening that Muhammad Amm and Abdullah PWs took Zubair, PW to the complainant and narrated the whole occurrence to him. Next morning the complainant took the victim to Kala Bagh for medical examination and it was after this formality that the FJ.R. was lodged on 8-4-1982. The fact that the Police Station Daud Khe! falls on the way while going to Jala Bagh. does not prejudice the prosecution case because either the complainant himself might have thought or he might have been informed by others that in a case like sodomy the medical examination of the victim is necessary before lodging the report with the police. He, therefore, first took the victim to Kala Bagh for medical examination and then went to the Police Station Oaud Khel and lodged the FJ.R. This process must have consumed sufficient time. It is not denied that medical examination of the victim was necessary in this case. However, according to the defence counsel the comp­ lainant must have lodged the F.I.R. with the Police and then it was for the Police to get the victim medically examined. It. is however not denied that the complainant belonged to a 'kammi' class of the village and therefore he must have faced some difficulties in lodging the report without prior medicai exami­ nation of the victim. It is however not shown by the learned defence counsel, A how the delay in lodging the report has been used against the accused for fabri eating a false case. After taking into consideration the relevant facts and cir­ cumstances of the case, we are satisfied, that the delay in lodging the report with the police has been satisfactorily explained and this has not in any way pre­ judiced the case of the defence. 7 Another argument advanced on behalf of the convict is that a false case has been concocted against Muhammad Tufail, accused. Reliance in this behalf is placed upon Ex.D.B. We have repeatedly asked Mr. Rab Nawaz Noon to show how the murder of Mst. Zewar Khatoon has any direct or indirect connection with the present case. He has read out this document before us several times but has not been able to show how that murder case of Mst. Zewar Khatun helps the accused in the present case and ultimately he had to admit before us that the defence has failed to connect that murder case with the present one. In such a situation we fee! that the trial court has rightly rejected this plea of the defence. 8. The learned defence counsel has also contended that it was some Javaid who had committed sodomy with Zubair (P.W.) but due to enmity Tufail, accused was falsely implicated in this case. We have given our anxious con­ sideration to this defence suggestion but find no force in it. if it was some Javaid who had committed this offence than the complainant party would have no sympathy with him and allow him to go scotfree. Substitution in such cases is rather difficult. This was a day time occurrence and therefore there could be mistaken identity about the real culprit. It is nobody's case that the accused had muffled his face or otherwise had taken pre-caution to consea! his identity at the time of the commission of the offence. Zubair who was the victim in this case would know ?s to who committed «odomy with him. Simi­larly Muhammad Amin (P.W.) who is the eye-witness in this case has clearly named Tufail, accused as the person who committed unnatural offence with Zubair (P.W). Moreover for false implication of Tufaii, accused, there should be strong or serious enmity between the parties but the defence failed to bring C any such material on the record to justify such inference. Thus it is mere allegation of the defence which is not supported by any evidence—direct or circumstantial. 9. Another argument advanced by the learned defence counsel is that the medical evidence does not support the prosecution. In this regard he has referred to the statement of Dr. Muhammad Mushtaq Ahmad (P.W. 1), who had medically examined Zubair (P.W.) as well as Tufail, accused. Altht ugh the doc'or has categorically stated that Tufail, accused was physically and mentally fit to perform the sexual act yet ia his report it is observed that the penis of the accused showed no erection on manual stimulation of the organ. On the basis of this observation, it is vehemently contended by Mr. Rab Nawaz Noon that the accused could not commit sexual act and therefore MLR Ex. P.E. should be completely ignored. The doctor was subjected to lengthy cross examina­ tion but the defence could not shake his credibility. No doubt sexual act isl not possible without erection of the male organ but non-erection of the male organ on manual stipulation can be for more than one reasons. The counsel for the parties have referred to various books on medical jurisprudence as well the medical dictionary in this behalf, If non-erection of the male organ is due to the importance then the argument of the learned defence counsel will have force. However in the instant case the opinion of the doctor is that Tufail accused was physically and mentally fit to perform the sexual act and therefore no question of impotence arise in this case. In view of such positive and clear cut opinion of the doctor regarding potency of the accused, we have to judge whether non-erection of male organ on manual stipulation can be for reasons other than impotence. It is mentioned in several medical books and not even denied by the learned defence counsel, that such non-erection can be due to psychological and other factors like fear temporarily. The defence has not] brought any material on the record to show that Tufail accused was really impo­ ent or incapable of performing sexual act at the relevant time. The symptom] mentioned in the observation of the doctor clearly support his conclusion that the accused was fit to perform sexual act. In the absence of any such material available on the record we find no legal justification to differ with the opinion! of Dr. Muhammad Mushtaq Ahmad (P.W) that Tufail, accused was physically] and mentally fit to perform the sexual act of the relevant time. 10. The learned defence counsel has however argued that the M.L.R. and the report of the Chemical Examiner should not be attached any impor­ tance for the reasons that Zubair was not medically examined through the Police but on the request of the private party and the anal swabs were also handed over by the doctor to the private party. As mentioned above Mian Muhammad, complainant took Zubair (P.W) direct to the medical officer (Dr. Muhammad Mushtaq Ahmad) and got him medically examined. The doctor after taking three anal swabs, sealed them into a container and handed over the same to the complainant with the direction to deliver the same to the Police for onward transmission to the Office of the Chemical Examiner, Lahore . Accordingly the omplainant handed over these sealed swabs to .H.O. Muhammad Akram (P.W) who took the same into possession vide memo Ex.P.G. Along with the sealed parcel the doctor had also written to the Chemical Examiner a for­ warding letter No. CHK, dated the 8th April, 1982, a carbon copy of which is Ex.P.B. This sealed parcel was entrusted to F.C. Isab Khan, (P.W. 6) for delivering the same in the Office of the Chemical Examiner, Lahore , and he delivered the same intact. The report of the Chemical Examiner regarding anal swabs is positive. In these circumstances the learned defence counsel has failed to show how the medical examination of Zubair (P.W) through the private party and handing over the sealed parcel of apal swabs to the same party, has prejudiced the defence. It is not shown by the defence that the complainant or the police had either tampered with or substituted the sealed parcel of anal swabs. The report of the Chemical Examiner Ex.P.C. shows that the said sealed parcel was received through D.C. Isab Khan intact. As regards the merits, we find that the prosecti on case is supported by Zubair (P.W) who at the relevant time was a minor boy of 9/10 years of age. He was subjected to lengthy cross-examination but his credibility could not be shaken by the defence. The learned defence counsel has not been able to point out any material on the record to show his emnity or motive to falsely implicate Tufail, accused. After going through his statement we find that he is a natural and truthful witness and has been rightly believed by the trial court. He is supported by Muhammad Amin (P.W. 4) who is the eye-witness in this case. He has fully supported the prosecution case and had no motive to falsely implicate the accused. The statement of the victim (Zubair, P.W) is also corroborated by the medical evidence and the report of the Chemical Examiner. Dr. Muhammad Mushtaq Ahmad (P.W) has clearly stated that Zubair (P.W) was subjected to sodomy. Similarly the report of the Chemical Examiner (Ex. P.C) is positive showing that the a.nal swabs were stained with semen. Thus we are convinced that the prosecution has established the guilt of Muhammad Tufail accused beyond any shadow of doubt. He has been rightly convicted by the trial court under section 377 PPC. We also maintain his conviction. The question of his sentence is discussed below in the connected appeal. Now we take up the connected Crimi al Appeal No. 98/1 of 1982, filed by Muhammad Zubair through his counsel Mr. M. Bilal, Advocate. As mentioned above the prayer in the memo of appeal is that the conviction of Muhammad Tufail, accused may be altered from S. 377 to one under section 12 of the Ordinance VII of 1979, and a suitable punishment may be awarde to him in accordance with Law to meet the ends of justice. During the argu­ ment however Mr. M. Bilal did not press his prayer for altering the convictio of Tufail, accused from section 377 PPC to one under section 12 of the Ordi­ nance but contended that the sentence of imprise ment under section 377 PPC be enhanced suitably. ' Even otherwise we find that section 12 of Ordi­ nance VII of 1979 is not attracted to the facts of the instant case because taking Zubair (P.W) from the path to a nearby Wahn would not constitute kidnapping or abduction as contemplated by section 12 of Ordinance VII of 1979. On the question of quantum of sentence Mr. M. Bilal has cited several authorities including PLJ 1978 S.C. 211 (Naushad v. Jehan Ze£)and PLD 1959 Lahore 677. It is not disputed that any principle enunciated by the Supreme Court is consti­ tutionally binding upon this Court. In the case of Naushad referred to above the Supreme Court of Pakistan had enhanced the sentence of imprisonment from 3 months to 5 years R.I. under section 377 PPC. Similarly the Lahore High Court in the appeal filed by the State against Wa!i Muhammad, convict sentenced the accused to 5 years R.I. under section 377 PPC. After taking into consideration the relevant facts and circumstances of the case and following the precedences and principal laid down by the Supreme Court referred to above, we enhance the sentence of imprisonment from 2 years R.I. to 4 years R.I. The sentence of fine awarded by the trial court is also maintained. The result is that Criminal Appeal No. 18/1 in 1983 filed by Muham­ mad Tufail, convict is dismissed but Criminal Appeal No. 98/1 of 1982 filed by Muhammad Zubair (P.W) against Muhammad Tufail, convict is accepted to the extent that the sentence of imprisonment of 2 years R.I. under section 377 PPC is enhanced to 4 years R.I. The sentence of fine of rupees two thousand imposed by the trial court is also maintained. In default of payment of fine the convict shall under go further R.I. for 6 months. TQM) Order accordingly.

P L J 1983 FSC 223 P L J 1983 FSC 223 (Appellate Jurisdiction) Present: zahoor-ul-haq, J Mst, ITEBAR JANA—Appellant versus THE STATE—Respondent Criminal Appeals No. 35/1 & 36/1 of 1983, decided oft 8-5-1983. Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10— Zina— -Offence of—Appellants not actually seen by any witness while committing Zina with.each other—None of witnesses even stating to have actually seen appellants living together at any time— Held: Abduc­ tion of first appellant having taken place 8/9 months before birth of child, husband of appellant to have access to his wife 9 months before birth of child and such child not with certainty to be said to be not his son— Held: There being no proof either of Zina or even of living to­ gether by two appellants, conviction and sentences of both appellants to be set aside. [P. 226] A PLJ 1976 SC 44 (at 60) ref. Mr. M. Bilal, Advocate, A/r. /. R. Lodhi, Advocate and Syed Masood Ahmaa, Advocate for both the Appellants. Mr. Muhammad Aslam Uns, Advocate for the State in both appeals. Date of hearing: 3-5-1983. . judgment These are two connected appeals against the judgment of Sessions Judge, Mianwali dated 28-2-1983 whereby Mst. Itebar Jana was convic­ ted under Section 10 of Ordinance VII of 1979 and was sentenced to suffer six months R.I. plus 5 stripes and to pay fine of Rs. 3,000 or to suffer further six months R.I. in default of the payment of the same. The appellant Noor Ahmad was also convicted under Section 10 of the same Ordinance and was sentenced to suffer 7 years R.I. plus 10 stripes and to pay fine of Rs. 5,000 or to suffer further six months R.I. in default of the payment of fine. Half of the fine if realised was ordered to be paid to P.W. 9 Muhammad Aslam who was the husband of Mst. Itebar Jana. Noor Ahmad appellant who had also been charged under Section 16 of the same Ordinance for the offence of abduction of Mst. Itebar Jana was acquitted of that charge by the same judgment. 2. The case started with a statement Ex. P.A. made by Fazal-ur-Rehman, P.W. 8 to P.W. 1 Syed Nisar Ali Shah, S.I. SHO of Police Station, Bhangi Khel on 5-8-1982 which was registered as an FIR Ex. PA/1 at the same police sta­ tion by P.W. 4 Salabat Khan, H.C. The complainant stated that his brother Aslam had been married in 1974 with Mst. Itebar Jana. Since his brother Aslam was posted with Deer Scouts, therefore, Mst. Itbear Jana was alone and therefore, Noor Ahmad son of Khawaja Muhammad Khan Pathan had started visiting the house of Aslam and developed illicit relationship with Mst. It ebar Jana and abducted her about three years earlier for the purpose of committing zina. The complainant side was on their look out bin they could not trace them. They were, however, told by Nazar Gul and Khani Sher that both Noor Ahmad and Mst. Itebar Jana were seen by them about 2-3 days earlier sitting in their house together on one charpai and one illegitimate child had been born out of their illicit relationship. The complainant also stated that he had verified the said information- and came to know that they had in fact come to their house 2-3 days earlier but had again absconded. The photostat copy of nikahnama is appended to the statement. The case was partly investigated by Syed Nisar Ali Shah> P.W. 1 who had recorded the statement of the complainant Ex.P.A. and got the same formally recorded as an FIR in the Police Station. He took into possession the nikahnama between Mst. Itebar Jana and Aslam which is Ex.P.S, vide a memo Ex,P.C. He examined the prosecution witnesses. He had also seen the original nikahnama which was Ex. P.O. P.W. 2 Kifayatullah had done partial investigation by examining Muhammad Abdullah Khan Secretary Union Council, Tabi Sar. Rest of the investigation was made by P.W. 10 Mehram Khan from 7-8-1982. He drew the site plan Ex. P.P. and examined P.Ws. He arrested Noor Ahmad at bus stand Bhang: Khel on 4-9-1982. He also prepared site plan of the recovery of the abductee Mst. Itebar Jana which is Ex.P.G. and is dated 4-9-1982. He got the appellant Noor Ahmad examined by Medical Officer on 5-9-1982. Mst. Itebar Jana was got examined from Medical Officer at Khoshab on 7-9-1982. Mst. Itebar Jana was formally arrested. He examined Aslam on 10-9-1982 and submitted the challan. The case of the prosecution is based upon statements of P.W. 5 Nazar Gul and P.W. 6 Khani Sher both of whom made similar statements in Court and deposed that they had seen Mst. Itebar Jana and Noor Ahmad on a cot in the courtyard of the house of Noor Ahmad on 2nd or 3rd August last year and reported the matter to the complainant. They also stated that Mst. Itebar Jana was abducted about three years ago. Both of them were cross examined at length and were confronted with their statements in Court recorded earlier on 6-11-1982. In that statement P.W. 5 had stated that they had seen both the accused sitting on a charpai in the month of May. Since May and August are quite a long way from each other, therefore, the seeing together of the two appellants by P.Ws. Nazar Gul and Khani Sher appears to be doubtful. Moreover Nazar Gul denied that his son Munir Khan had abducted the daughter of appellant Noor Ahmad, Mst. Razia. But this was admitted by Khani Sher in his cross examination and therefore, Nazar Gul and Noor Ahmad could not be having good relationship with each other. Similarly P.W. 6 Khani Sher appears to be having animosity with Noor Ahmad inasmuch as he denied in cross examination that Subedar Hanif brother of Noor Ahmad appellant had complained against him and as a result thereof his depot was bifurcated and half of it was given to Shahpur. But he was confronted with his statement made on 6-11-1982 where he had made a statement that on the complaint of Hanif brother of accused his depot was divided and half of the same was given to Shahpur. In these circumstances it would be very risky to rely upon the statements of P.W. 5 and P.W. 6 in support of the prosecution of zina. None of them had made any statement that he had seen the two appellants commit­ ting zina with each other. 6. I do not find any other statement from any person stating that he had actually seen the two appellants committing zina with each other. Complainant Fazal and PW Aslam do not even claim to be eye witnesses of zina. What has been done is that the prosecution has proved clearly and the same has also been admitted by Mst. Itebar Jana that she was the duly wedded wife of P.W. 9 Muhammad Aslam. But this is neither here nor there and does not take the case of the prosecution any further because zina has to be proved in a positive way. I have already observed above that in the case of abduction the appellant Noor Ahmad was acquitted and it is, therefore, abundantly clear that abduction has not been proved against him. I have also scrutinised the evidence of the P.Ws. and I find that the learned trial Court was more than justified in a cquitting Noor Ahmad from the case of abduction as no one had made any definite statement that he had seen Noor Ahmad taking away Mst. Itebar at any time. 7. The learned trial Judge has relied heavily upon the statement of C.W. Sahib Jan who is Chowkidar of three villages and who maintains the register of births. He has produced copy of the birth register marked as C.W. 1 !A where it is shown that a boy Javed Akhtar Khan was born out of Mst. Itebar Jana on 5-4-1980 but the name of the father is not shown. The name of the mid-wife is, however, shown as Maloocha. This Sahib Khan deposed that he had entered the child as a bastard or "Harami" in view of the fact that Mst. Itebar Jana was with Noor Ahmad for about 8-9 months. In cross examina­tion he admitted that he did not write the name of Aslam, P.W. as the father of Javed Khan because he had contacted Piavi Khan brother of Aslam, P.W. who had said that it was not the son of Aslam. Piavi Khan had also told him that the child was not of his brother, he was illegitimate child and should be described as such. It is, therefore, obvious that Sahib Khan has deposed on the basis of information conveyed by Piavi Khan the brother of P.W.s. Aslam and Fazal-ur-Rehman and therefore, he has not deposed on the basis of his own information. Ke admitted at the end that he had written so according to his own ideas and investigation. Obviously the ideas and investigation do not amount to personal information. But this witness Sahib Jan has stated in his cross examination that Mst. Itebar Jana had been abducted about 8/9 months prior to the child birth. This admission on the part of this witness deals a fatal blow to the prosecution case that Javed Khan was an illegitimate child. The birth of Javed Khan after 8 or 9 months of the alleged abduction of Mst. Itebar Jana does not prove that he was an illegitimate child. After all the abduction has been disproved and even the timing of the abduction is not stated by any one in clear terms. If Mst. Itebar Javia was in the house of her husband before the child's birth then there is a presumption which has to be drawn in favour of the child Javed Khan to be the son of P.W. Aslam. The maxim of Muslim Law is "child follows the bed". Our Supreme Court in the case of Mst. Hameeda Begum reported as PLJ 1976 S.C. 44 at page 60 has held as under:— "Under the Muhammadan Law, as in all civilised systems of law., the child follows the bed (firash), that is, the paternity of a child born in lawful wedlock is presumed to be in the husband of the mother without any acknowledgement of affirmation of parentage on his part and such child follows the status of the father. According to the Sunni schools the pre­ sumption of legitimacy is so strong that in cases where a child is born after six months from the date of marriage and within two years after dissolution of the marital contract, either by the death of the husband or by divorce, a simple denial of paternity on the part of the husband would not take away the status of legitimacy from the child. Of course, presumption based on the bed is subject to the right of disavowal on the part of the husband for want of access. This right has to be exercised in accordance with the custom of the locality either on the day of the child's birth or at the time of purchasing articles necessary in view of its birth or during the period of rejoicing. If the husband is absent, he must disown the child immediately he is informed of its birth. The shortest period of gestation, according to all the schools, is six months. If, therefore, a child is born within six lunar months of the marriage, no affiliation would take place unless the man acknowledge it to be his issue. In other words, it is the right of the man to legitimate a child born within this time by acknowledging expressly or impliedly that the conception took place in wedlock. According to the Hanafis, contrary to the Shaft's, the husband is entitled to claim the child born in wedlock as his, even if he had no access to the wife." Since this child Javed Khan was born on 5-4-1980 and Sahib Khan had ad­ mitted that the abduction was only 8 or 9 months before the birth of the child, therefore, Aslam had an access to his wife about 9 months before the birth of the child and thus this would become a case where it could not be said with certainty that the child was not the son of Aslam and hence the case of com­ mission of zina by Noor Ahmad with Mst. Itebar Jana which could have re­ sulted in the procreation of Javed Khan was far from being correct. No one has even stated that he has actually seen the appellants living together at any time and whatever has been stated by P.Ws. 5 and 6 has been disbelieved by me. The net result is that there is no proof either of zina or even of living together by the two appellants. Even the investigation officer Mehram Khan, P.W. 10 has failed to prove that on 4-9-1982 he had arrested the two appellants together and hence it can­ not be said that they were together at the time of their arrest although the arrests took place on the same day. The result is that the prosecution has failed to prove that the appel­ lants have been committing zina with each other. In fact the allegation of the appellants living in the state of zina is clearly disproved from the report of the Chemical Examiner Ex.P.H. which shows that the swabs were not stained with semen. This report was in respect of the swabs obtained from the vegina of Mst. Itebar Jana by the W.M.O. Khoshab on 5-9-1982. This report has been filed by the prosecution itself and it clearly suggests that Mst. Itebar Jana has had no intercourse with any one atleast two weeks before 5-9-1982. It is difficult to conceive that two persons who are alleged to be living together in adultery would remain away from each other for 14 days. 10. The net result is that the two appeals succeed and the conviction and sentence are set aside and the appellant are acquitted of the charge. Noor Ahmad shall be released forthwith if not required in any other case. Mst. Itebar Jana is on bail, her bail bonds are discharged. (TQM) Appeals accepted.

P L J 1983 FSC 227 P L J 1983 FSC 227 (Original Jurisdiction) Present: aftab hussain, C.J. & malik ghulam ali, J MUHAMMAD RAMZAN— Appellant Versu s MUHAMMAD SAEED— Respondent Suo Moto Criminal No. 1/83 in Cr. Appeal No. 9/L of 1982, decided on 23-4-1983. (i) Marriage — -----Proof f—Held: Nikahanama not necessary to be relied upon or proved to establish marriage and mere statements of persons claiming to be hus­band and wife to be sufficient to establish Nikah and relationship of hus­ band and wife — Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— S. 16. [P. 229] C PLD 1982 FSC 42 re/. (ii) Pakistan Penal Code (XLV of I860)— - Ss. 193 & 195 read with Criminal Procedure Code (V of 1898)-— S. 476 — False evidence — Fabrication with intent to procure conviction — Offence of — Respondents cooking up false case to involve appellants on false pretext of forcible abduction — Federal Shariat Court finding statements of respondents self contradictory and false to their know­ledge — Held: False statements having been made in court in attempt to prove against so many persons case of forcible abduction, case of perjury established against respondents — Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— S. 16. [P. 228 J A & B Khawaja Muhammad Farooq, Advocate for Respondent. Date of hearing: 23-4-1983. judgment Aftab Hussain, C. J. —This case started on a notice served upon the respondents under Section 476 Cr.P.C. to show cause why they should not be convicted under Section 193 PPC for making false statements in the Court of the Additional Sessions Judge, Sargodha to involve the accused in State v. Muhammad Saeed etc., (except Moulvi Muhammad Aslam and Mst. Zarin Khatoon) in a case of forcible abduction of Mst. Zarin Khatoon. Challan under Section 10(2) and Section 16 of Zina (Enforcement of Hadood) Ordinance VII of 1979 read with Section 109 PPC was presented in the Court of Mian Muhammad Nawaz Naikhokara, Additional Sessions Judge, Sargodha , who gave the benefit of doubt to the accused persons and acquitted them of the charge by order dated 3-11-1981. An appeal against acquittal was filed by Muhammad Ramzan res­ pondent which was dismissed by this Court vide judgment dated 19th February, 1983. It was held that the case of Mst. Zarin Khatoon and Muhammad Saeed from the very beginning was that they had married each other and were hus­ band and wife. The statements, of the respondents were also held to be selfcontradictory and false to their knowledge, it was obviously a case of marriage by consent which completely excluded the possibility of there oeiflg any forcible abduction. For this reason Mst. Zarin Khatoon was herselr made an accused. An unsuccessful attempt was also made to show that the Nikannama produced in court was a forgee one and on account of this Moulvi Mohammad Aslam Nikah Khawan was also involved by the Police. After taking into consideration all the faets it was concluded that the conduct of the two persons (Muhammad Saeed and Mst. Zarin hatoon proved beyond any shadow of doubt that they were living as husband and wife from the 15th of December, 1979 and a false case was cooked up to in­ volve them on a false pretext of forcible abduction. In these circumstances there can be no two opinions except that the evidence of P.W. 4 to P.W. 6 is false to their knowledge and they had falsely fixed the date of abduction as the 17th of May, 1980 although at the time she had already been married to Saeed respondent for a few months. The learned counsel for the respondent submitted that at least a case of zina with consent was proved against Saeed and Mst. Zarin hatoon in so far as she had pregnancy of 5 months. This argument firstly ignores the findings already referred to above and secondly cannot be reconciled with the story of Mst. Zarin Khatoon being forcibly abducted. The stand of the respondents who insist that their state­ ments were correct, is absolutely false. The learned counsel further argued that Section 193 PPC would be attracted only if it is proved that the false statement was made intentionally, but in the present case none of these three persons had any knowledge that the Nikah of Mst. Zarin Khatoon had already been performed sometimes before. This argument is without force. The information about the Nikah is not material on the question of abduction by force except to the extent that it cannot be reconciled with the story put up by the three respondents. How­ ever, as stated above the Nikahnama had been produced by Muhammad Saeed and Zarin Khatoon at the earliest opportunity and it was admitted in crossexamination by Muhammad Ramzan that "it is correct that the accused said that Mst. Zarin Khatoon is his wife and he would not return her". This proves that he knew about the position of Saeed and Zarin Khatoon that they were married. These false statements were made in the Court in an attempt to prove against so many persons a case under Section 11 of the Ordinance, sentence of which is life imprisonment The case under Section 193 PPC is established against the respondents. The learned counsel hinted that he could prove that Khan Muhammad one of the witnesses of the Nikahmana was stationed at Sialkot on the date of Nikah and he was not relieved, from the post of his appointment since he was posted as Gunner in the Field Regiment Artilleiy, Sialkot. Once the respondents insist upon the correctness of their statements made in Court on oath and these statements have been proved incorrect we do not see how can, they prove the accuracy of their statements. The learned counsel submitted that though it is not open to the respondents to produce such evidence but the respondents can prove that the Nikahnama was a forged docu­ ment. This argument is hardly relevant aftei 1 a finding about Nikah is also given in this Court's judgment. It is,not necessary to rely upon or prove a Nikahnama to establish marriage. It was held in Arif Hussain and Azrah Parveen v. The State (PLD 1982 FSC 42) that mere statements of the accused persons claiming that they are husband and wife is sufficient to establish Nikah and the relationship of husband and wife. The next question is about the sentence. The sentence provided by Section 193 PPC is inter alia seven years' imprisonment of either description. Sub-section (2) of Section 476 Cr.P.C. however provides that the High Court or a Court of Sessions inter alia can pass sentence except inter alia sentence of imprisonment exceeding 5 years. It is not neessary to consider the question whether this provision providing for imposition of a lesser sentence is applic­ able to the Federal Shariat Court because we are disposed to pass even a lesser sentence in this case. We convict the three respondents namely, Muhammad Ramzan, Rab Nawaz and Khan Muhammad under Section 193 PPC and sentence each of them to three years rigorous imprisonment. (TQM) Order accordingly.

P L J 1983 FSC 229 P L J 1983 FSC 229 (Appellate Jurisdiction) Present: ali hussain qazilbash & malik ghulam ali, JJ MUHAMMAD ZAFAR—Appellant versus ZAHEER and Others—Respondents Criminal Appeal No. 55/1 of 1983, decided on 31-5-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) —

S. 10(3)— Zina —Offence of—Accomplice—Testimony of—Corrobora- tion—Necessity of— Held: Testimony of accomplice not to be accepted unless corroborated by circumstantial envidence—Criminal Trial—Con­ viction. [P. 232] C (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VET oj 1979)—

S. 10(3)— Zina —Offence of—Solitary witness—Testimony of—Con­ viction—Basis for—Version of •occurrence full of discrepancies and con­ tradiction— Held: Testimony of solitary witness not to be made basis for conviction of respondents—Criminal Trial—Conniction [Pp. 231 & 232] B (iii) Criminal Procedure Code (V of 1898)—

Ss. 180 & 531—Trial—Place of—Court—Jurisdiction of—Irregularity —Effect of—Alleged abduction taking place within jurisdiction of Addi­tional Sessions Judge, Kabirwala— Held: Such Additional Sessions Judge to have jurisdiction to try respondents for offence of Zina committed in Bahawalpur— Held further: Trial having not occasioned any miscarriage of justice, jurisdiction of court trying and convicting respondents under" S. 10(3) of Ordinance VII of 1979 not to be challenged even on ground of some irregularity curable under S. 531 of Cr. PC—Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—S. 10 (3). [P. 231] A Mr. Muhammad Amin Jan, Advocate for Appellant. Date of hearing: 31-5-1983. order Ali Hussain Qazilbash, J. —The Additional Sessions Judge, Kabirwala District Multan was seized of the case against Zahoor, his brother Zafar and his mother Mst. Khurshid Bano, r!o Mouzia Kourayawala, Tehsil Kabirwala, District Multan under section 11 and 10(3) of Ordinance VII of 1979. The respondents were tried and acquitted of the charge under section 11 of the said Ordinance on merits and also of the charge under section 10(3) ibid, on the ground of lack of jurisdiction. The order of the acquittal of the respondents is dated 10-2-1983, which has been impugned before us through the present appeal by Muhammad Zafar complainant/appellant. The learned counsel appearing for the appellant has impugned the findings of the learned trial court for acquitting the respondents of the charge under section 10(3) alone. He contends that at the trial the accused had sub­ mitted themselves to the jurisdiction of the trial court and at no stage had raised any objection as to the lack of jurisdiction of the learned Additional Sessions Judge, therefore, the court has acted wrongly in not exercising the jurisdiction vested in it under law. He further contends that the commission of rape in Bahawalpur notwithstanding, the court at Kabirwala had the jurisdiction to try the respondents for the offence under section 10(3) of the said Ordinance. The case of the prosecution is that the respondents had abducted Mst. Nasim Akhtar P.W. from her house situated in Mouzia Kouraywala Tehsil and Police Station Kabirwala and taken to Khaniwal and from there to Bahawal­ pur where she was subjected to rape. The police on secret information went to Bahawalpur and recovered Mst. Nasim Akhtar at the Bahawalpur Bus stand where she was accompanied by Zahoor Ahmad respondent who was also arrested. The police then brought Mst. Nasim Akhtar and the accused to Kabir­ wala wheve the respondents were put to trial which resulted in the impugned order. The learned Additional Sessions Judge while dealing with the case against the respondents under section 10(3) of the Ordinance, as to the question of lack of his jurisdiction observed that: "Mst. Nasim Akhtar P.W. left the house of her parents according to her own wishes and went with Zahoor Ahmad accused to Bahawalpur . The offence under Article 10(3) of the said Ordinance which is asserted was committed in Bahawalpur and not within the jurisdiction of this District. A girl who elopes with an accused person and then commits zina in other District then the latter District has got the jurisdiction to try the case under the said offence. The offence under Article 10(3) is not the outcome of abduction or kidnapping which is alleged to have been committed by Zahoor accused with Mst. Nasim P.W. Mst. Nasim Akhtar P.W. was a consenting party in leaving the roof of her parents and under these circumstances the offence of zina is not continuing offence". 6. This finding in our view, obviously is, erroneous. The respondents, no doubt, are charged with two distinct criminal offences i.e., offence of ab­ duction which is punishable under section 11 and of rape which is punishable under section 10(3) of Ordinance VII of 1979. The former offence is alleged to have been committed in Mouzia Kouraywala, Tehsil Kabirwala, District Multan and the /after at Bahawa/pur. As to the place of inquiry or trial Section 177 Cr.P.C. lays down that ordinarily the accused should be proceeded against by a court in whose local limits, he had committed an offence. The above is a general rule and is subject to several exceptions some of which have been enunciated in Sections 178 to 183 and 185 Cr.P.C. For the purposes of this case, in our humble view Section 180 Cr.P.C. and its illustration (c) is rele­ vant, which is reproduced below to facilitate reference:— 180. Place of trial where act is offence by reason of relation to other Offence: —When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done. Illustration: (c) A charge of wrongfully concealing a person known to have been kidnapping may be inquired into or tried by the Court within the local limits of whose jurisdiction the wrongful concealing, or by the Court within the local limits of whose jurisdiction the kidnapping took place. This section envisages cases in which two separate and distiact offences are committed by an accused person or cases in which such two offences are com­ mitted which are related in such a way that one of them becomes an offence on the perpetration of another. This section, therefore, lays down that in such an eventuality the first offence can be tiied by a Court within whose jurisdiction either of the offence was committed. Since the alleged abduction of Mst. Nasim Akhtar had taken place within the jurisdiction of the Additional Sessions Judge, Kabirwala, therefore, in view of section 180 Cr.P.C. illustration (c) he had the jurisdiction to try the respondents for offence under section 10(3). To this obviously the learned Additional Sessions Judge, Kabirwala had shut his eyes, ignored the above provision of law and has failed to exercise jurisdiction vested in him. Had the provisions of section 180 Cr.P.C. not been on the Statute Book and the respondents had been tried by him under Section 10(3) and convicted, in that event too, his jurisdiction could not have been challenged it being a mere irregularity which would have been cured by the provisions of section 531 Cr.P.C., if such a trial had not occasioned any mis­ carriage of justice. Under the normal circumstances we would have converted this appeal into a revision in exercise of jurisdiction vested in us under Article 203 DD of the Constitution of Pakistan and would have admitted the same to full hearing but we decline to do so because on merits no case has been made out against the respondents for subjecting Mst. Nasim Akhtar to rape. As to the alle­ gation of rape, we have on the record the statement of Mst. Nasim Akhtar only, who appeared in the Court as P.W. 8. The testimony of this solitary witness! cannot be made the basis of the conviction of the icspondents because heil jversion of the occurrence is full of discrepancies and contradictions. She being Cjan accomplice her testimony cannot be accepted unless corroborated by circum-jstantial evidence, which is miserably lacking in this case. 9. In this view of the matter, we find no merit in the case and dismiss the same in limine. Appeal dismissed.

P L J 1983 FSC 232 P L J 1983 FSC 232 (Original Jurisdiction) Present: aftab hussain, C.J., ali hussain qazilbash, ch. UUHAMMAD SlDDIQ & MALIK GHULAM ALI, JJ In re: THE SPECIFIC RELIEF ACT (I OF 1877). (i) Constitution of Pakistan , 1973— -Art. 203-D read with Specific Relief Act & Contract Act (IX of 1872)—S. 56—Contract—Performance of—Nonexistence of subject matter at time of performance—Effect of—Provi­ sions regarding—Repugnancy to Injunctions of Islam— Held: Most equit­ able guidance as to how court should act in circumstances laid down in S. 13 (of Act I of 1877) having been provided in later sections (14 to 16), principle that contract not to be wholly impossible of performance be­ cause of portion of its subject-matter existing at its date having ceased to exist at its performance not to be open to any objection. [P. 234] A (ii) Specific Relief Act (I of 1877)—

S. 13, Illustrations (a) & (b) read with Constitution of Pakistan, 1973<— Art. 203-D—Executing Contracts—Impossibility of performance of— Payment of consideration—Justification for— Held: Where contract be­ comes impossible of performance before its completion, other party not to be directed to pay consideration— Held further: There being no justi­fication under Sharia requiring promisee to pay consideration despite im­possibility of performance of corresponding part of contract, illustrations (a) and (b) to S. 13 standing on different footing to be eliminated. [Pp. 235 & 236] B,C,D&E (iii) Specific Relief Act (I of 1877)—

S. 22 (ii), Illustration (e) read with Constitution of Pakistan, 1973— Art, 203-D—Will in favour of heir—Permissibility of in Islam—Illus­ tration repugnant to Injunctions of Islam—Omission of— Held: Will in favour of heir being not competent in Islamic law unless other heirs consent to same after death of person making will, illustration (e) to S. 22(II)-pertaining to will made by father in favour of his son to be (required to be) omitted to avoid any confusion. [P. 236] G (iv) Specific Relief Act (I of 1877)—

S. 18 (d)— read with Constitution of Pakistan, 1973—Arts. 203-D & 203-B—Interest—Provision regarding—Federal Shariat Court—Juris­ diction in fiscal matter— Held: "Interest" being fiscal matter, Federal Shariat Court to have no jurisdiction to make any order in regard to pro­ visions dealing with subject—Held further: Substance of section being not affected, advisability of substituting word "interest" in clause (d) of S. 18 by words "Compensation or damages" to be recommended to be considered. [P. 236] F & H Iftikhar Hussain Chaudhry for the Federal Government. Date of hearing: 3-10-1982. order Aftab Hussain, C. J. —This Act deals with the subject of recovery of posses­ sion of property, of specific performance of contract, of rectification of instru­ments, of rescission of contract, of the cancellation of its instruments, of dec­ laratory decree, of the appointment of receiver, of the enforcement of public duty performed inter alia by public servant, of preventive relief and of per­petual injunctions. After going through the Act thoroughly we found that illustrations of section 13, illustration (e) of section 22 and clause (d) of section 18 required a more thorough probe. Illustration to Section 13. The doctrine of frustration is embodied in section 56 of the Contract Act. It provides that an agreement to do an act impossible in itself is void, whether the impossibility of performance may be antecedent or subsequent. The antecedent impossibility is that which exists at the time of contract. Subsequent impossibility may be due to some subsequent event which might render the contract impossible of performance. Section 56 deals with both kinds of impossibility but section 13 of the Specific Relief Act is an exception to section 56 of the Contract Act in so far as it deals with a particular type of subsequent impossibility. The two sections are as follows: "56. An agreement to do an act impossible in itself is void. —A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, be­ comes void when the act becomes impossible or unlawful. Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promise did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise. Illustrations A agrees with B to discover treasure by magic. The agreement is voic'. A and B contract to marry each other. Before the time fixed for the marriage, A goes mad. The contract becomes void. A contracts to marry B, being already married to C, and being forhidden by the law to which he is subject to practise polygamy. A must make compensation to B for the loss caused to her by the nonperformance of his promise. A contracts to take in cargo for B at a foreign port A's Government afterwards declares war against the country in which the port is situated. The contract becomes void when war is declared. A contracts to act at a theatre for six months in consideration of a sum, paid in advance by B. On several occasions A is too ill to act. The contract to act on those occasions becomes void." "13. Notwithstanding anything contained in section 56 of the Contract Act, a contract is not wholly impossible of performance because a portion of its subject-matter, existing at its date, has ceased to exist at the time of the performance. Illustrations A contracts to sell a house to B for a lakh of rupees. The day after the contract is made the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchasemoney. In consideration of a sum of money payable by B, A contracts to grant an annuity to B for B's life. The day after the contract has been made, B is thrown from his horse and killed. B's representative may be compelled to pay the purchase-money." The principle laid down in section 13 is not open to any objection since the guidance as to how the Court, should act in the circumstances laid down in the section is provided in sections 14, 15 and 16. Section 14 deals with a situation in which specific performance is sought of a contract where the part which must be left unperformed bears only a small portion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency. Section 15 deals with a situation where the part which cannot be performed is quite large in which case the Court may direct the party in deafult to perform specifically so much part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance and all right to com­ pensation either for the deficiency, or for the loss or damage sustained by him through the default of defendant. Section 16 provides for a case when a part of a contract taken by itself, if it can be performed, stands on a separate and independent footing from another part which inter alia becomes impossible of performance. The Court may then direct specific performance of that eparate portion which can be specifically performed. This guidance is most equitable and for this reason the principle on which ection 13 was made part of the statute is not open to any objection. The two illustrations, however, appear to stand on a different footing,. Both the illustrations relate to cases in which the entire subject-matter had ceased to exist at the time of performance, although what is relevant under the section is non-existence of a portion of the subject-matter only. The first illustration is that where in a contract to sell a house the con­ tract became impossible of performance because of the destruction of the house by a cyclone, the purchaser may be compelled to pay the purchase price. The other illustration is also of a similar character. In consideration of a sum of money payable by B, a contract was entered into between A and B for grant of an annuity to B for his life. The next day B was killed in an accident by falling from his horse. It is said that in such a case the legal representative of B shall be compelled to pay the purchase money. Both are illustrations of cases in which the contract was not final since in each case it was merely an agreement to contract as neither the consideration had been paid, nor in the first case the possession of the property was given nor in the second case actual contract to pay annuity to B completed. The first illustration is based upon Pain v. Meller [(1801) 6 Ves. 349—31 E. R 1088 L C=(1775 to 1802) All E R 155Q. In Pain v. Meller the facts were that the plaintiff sold certain houses to the defendant by auction, but owing to defects in title, the sale could not be completed at Michaelmas as agreed. The treaty, however, proceeded on a proposal to wavie objection on certain terms, and the defendant's agent subsequently declared himself satisfied with the title. The house were destroyed by fire before the conveyance. The plaintiff had allowed the insurance to lapse at Michaelmas without notifying the defendant and it was held that the defendant, having accepted the title, was bound by the sale, and the plaintiff was not bound to keep the policy on foot or to inform the defendant of its lapse. The second illustration is based upon Morimer v. Capper ((1872) I Bro. C C 156—28 E R 1051 =(1775-1802) All E R 359]. In that case the estate was sold by A to the plaintiff for £ 200 and an annuity for A's life. A died before the annuity became payable. In an auction for specific performance against A's heir-at-law it was held that the agreement being fair, the Court would order specific performance even though, through A's death, the annuity which was a contingent payment never became payable. In both the cases the contract was not complete and required specific! performance for completion. No part of the contract had at that stage been j performed by either party. In such a case where the contract had becomes impossible of performance before its completion it does not seem even reason-) able to direct the other party to pay the consideration. This principle is evident from Almughni, Vol. IV p. 121. Where the pro­ perty is movable and is subject to sale by weighment, measurement or count the buyer cannot be made responsible for payment of consideration prior to the delivery of the goods and in case the property is destroyed before delivery its loss will accrue to the seller. It is clear from this that this principle can apply only to a completed sale which according to fiqh is completed in the case of movable property by delivery of possession. There is, however, a difference of opinions in respect of destruction of immovable property prior to its delivery to the purchase thereof. The opinion of Imam Abu Haneefa is that in such a case the buyer shall be respoinsbile to pay the consideration despite destruction of the substitute of the thing sold. JU _ It appears from other books that this principle was evolved by Imam Abu Haneefa in view of incident of destruction of immovable property being rare. The view of Imam Shafi'e, Imam Ahmad and Ibn-e-Abbas is that the principle of movable and immovable property is the same and incase of destruc­ tion of the latter too while in the possession of the seller, the liability of the purchaser to pay the consideration ceases. These opinions are in respect of completed contracts. It is important to note that Sharia does not distinguish between an executory and an executed contract as such. The general rule in Fiqh is the sale of existent property only. The present law in Pakistan achieves the same object by giving to the contract to sell what may exist in future the satuts of an executory contract only. Illustrations (a) and (b) to section 13 are definitdy examples of executory contracts. There is no justification in Sharia requiring the promise to pay consideration despite the impossibility of performance of the corresponding part of the contract. These illustrations require to be eliminated. In section 18(d) it is provided that if the vendor sues for specific per­ formance but specific performance is refused on the ground that he could not give a title free from reasonable doubt, the purchase is entitled to a return of his deposit with interest thereon. Whether a purchaser has 'properly' dec­ lined to accept delivery of the property depends on the terms of the contract and the circumstances of the case. Where a purchaser refuses to complete, alleging that the title is defective, he is entitled to a refund of the deposit if he was justified in refusing the title. Thus where a vendor agrees to sell land and the buildings thereon, but it turns out that the only interest he has in the land is a revocable licence to occupy the land, and the purchaser refuses to complete, he is entitled to a return of the deposit. In the subsection the word interest can be safely substituted by the word compensation or damages, if any. Section 22(11) is illustrated inter alia by illustration (e). The illustration pertains to will made by a father in favour of his son, which is not permissible in Islam. This is an established law that will in favour of heir is not compe­ tent unless other heirs consent to it after the death of the perfson making the will. Since some confusion may arise on account of this illustration, it would be better if it is omitted. The omission of this illustration will not affect the provisions of the section. Part II of section 22 is amply illustrated by other illustrations. We, therefore, direct that the Specific Relief Act be amended and illustra­ tions (a) and (b) of section 13 and illustration (e) of section 22 shall be omitted by the 28th February, 1983. We are aware that 'interest' is a fiscal matter. The Court has no juris­ diction to make any order in regard to a provision dealing with that subject. However, we recommend that the advisability of substituting the word in- 'interest' in clause (d) of section 18 by the words 'compensation or damages" be considered, since it will not affect the substance of the section. (TQM) Order accordingly.

P L J 1983 FSC 236 P L J 1983 FSC 236 (Appellate Jurisdiction) Present: B.G.N. kazi, J MIAN DAD and Another—Appellants versus THE STATE—Respondent Criminal Appeal No. 58/1 of 1983, decided on 5-7-1983. (i) Constitution of Pakistan , 1973— —-Art. 203-DD read with Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—S. 20—Federal Shariat Court—Appellate Jurisdiction of—Held: Offence charged even if not spelt out, Federal Shariat Court to have authority to consider on facts brought on record whether any other offence has been committed (in case). [P. 240J C (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

Ss. 16 & 19 (2)—Enticing on taking away woman—Offence of— None of prosecution witnesess stating to have seen accused (appellant No. 1) enticing or taking away other appellant— Held: There being abso­lutely no evidence about enticing or taking away of second appellant, conviction under S. 16 of Ordinance or for abetment of such offence not to be sustained. [Pp. 239 & 240] B & D (Hi) Muslim Family Laws Ordinance (VIII of 1961)—

S. 6—Polygamy—Failure to obtain permission-Effect of—Held: Fail­ ure to obtain permission from wife to contract second marriage to attract penal action but not to invalidate such marriage. [P. 239] A Malik Muhammad Rafique, Advocate for Appellant. Mian Muhammad Ajmal, Assistant Advocate General, N.W.F.P. for State. Date of hearing: 2-7-1983. judgment The Sessions Judge, Abbottabad tried Essa Khan, Mian Dad, Allah Dad, Mst. Muhammadi, Khan-e-Zaman, Muhammad Bashir and Mir Zaman on the charge of enticing away Mst. Murbat Jan with intent that she may have illicit intercourse with Mian Dad and thereby committing an offence punish­ able u/s 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (Ordinance VIE of 1979) (hereinafter referred to as the Ordinance), and also tried Mst. Murbat Jan for abetting the co-accused—an offence punishable under section 19(2) of the Ordinance, and acquitted all the accused except Mian Dad and Mst. Murbat Jan whom he convicted under sections 16 and 19(2) of the Ordinance and sentenced each of them to rigorous imprisonment for four years, 20 stripes .and a fine of Rs. 2,000/- or in default to undergo further S.I. for one year. This appeal has been filed by the two appellants against the aforesaid convictions and sentences. 2. The prosecution case against the appellants is as under:— On 7th January, 1982, as 12.00 noon Sultan s/o Dost Muhammad Dhoond lodged FIR with Ghulam Mustafa Moharrair, Bagnotar Police Station, which was recorded and read out to him, in which he stated that he had married Mst. Murbat Jan, d/o Khan-e-Zaman. There was no issue of the marriage. His wife being angry with him had been living her father for last four months. He was doing labour at Karachi and 3/4 days before the date of lodging the report his mother had asked him to return home. On 5th January, 1982, when he reached home he came to know from his mother that his wife Mst. Murbat Jan was abducted by Mian Dad s/o Essa Khan with the consent and help of Khan-e-Zaman, Bashir, Mst. Muhammad w/o Khan-e-Zaman, Mir Zaman, Essa Khan s/o Said Khan, and Allah Dad son of Essa Khan on 30th December, 1981. He further stated that his wife had taken away Rs. 4,000/- in cash, a locket, nosepins and ear rings of gold weighing 3 tolas, besides 8 'juras' of clothes, ASI Mohazum Shah of Bagnotar Police Station arrested Bashi, Mir Zaman, Khan-e- Zaman and Mst. Muhammadi accused on 7-1-1982. Complainant Sultan Khan produced a letter purporting to have been written by accused Essa Khan and handed over to Roshan Din barber, which was secured in presence of Mashirs, Sher Zaman and Ali Zaman. On 8-1-1982, the ASI inspected the scene of offence and prepared Site Plan. He found that accused Mian Dad, Ali Zaman, Allah Dad and Mst. Murbat Jan were absconding and initiated proceedings against them under sections 87 and 88 Cr.P.C. and obtained warrants under section 204 Cr.P.C. from the Illaqa Magistrate. An application was submitted to Officer Incharge of the Colony Police Station Karachi by the brother of Sultan complainant in July, 1982, men­ tioning that absconding accused were living in Karachi . The same was marked to ASI Nasiruddin Ansari for action. He took a lady constable and arrested the accused from a house in Gutter Bagheecha and brought them to the Police Station and informed Police Station Bagnotar about the arrest of the pro­ claimed offenders. At first Mian Dad, Allah Dad and Mst. Murbat Jan were arrested and on Mian Dad giving the address of his father Essa Khan, he too was arrested on the same day i.e., 26-6-82. On 28-6-1982 he obtained remand of the accused in Police Custody when Head Constable Abdur Rashid of Bagnotar Police Station reached there, handed over the four accused to him. Abdur Rashid after obtaining requisite permission brought the accused to Abbottabad where Mst. Murbat Jan was medically examined. SI Masud Parvaiz who was SHO Police Station Bagnotar then sent up the accused for trial. At the trial all the accused persons including the two appellants pleaded not guilty. Appellant Mian Dad took the plea that it was for Mst. Murbat Jan to say whether at all there was her marriage with Sultan. In any case he had married her in Karachi after she had been divorced by Sultan on the decision of Jirga. He totally denied the enticing and taking away of Mst. Murbat Jan and he also denied that he, his brothers and father had absconded. It was his case that they had gone to Karachi seeking employment. He had married Mst. Murbat Jan with her consent and in presence of her parents and other persons and the Nikah has been performed. Mst. Murbat Jan appellant had also totally denied her enticement by Mian Dad. She stated that she was married to Aurangzeb, the younger brother of Sultan who had died. She did not want to marry Sultan and had never given her consent to any such marriage. She had been pressurized by Sultan for marriage and she had not given consent voluntarily. She denied that she had given birth to any child of Mian Dad whom she had married after Sultan divorced her. She totally denied being enticed by the accused or that she had absconded and further stated that she alongwith other members of her family was residing in Karachi and Mian Dad was earning his livelihood there. She further stressed that she is innocent and had not been charged by Sultan of any offence but it was the mother of Sultan, with whom she had not good relations and who had falsely deposed against her, as she entered into marriage with Mian Dad. Similarly, all other co-accused namely relatives of Mst. Murbat Jan and Mian Dad totally denied any enticing or taking away of Mst. Murbat Jan. On behalf of prosecution as many as 13 witnesses were examined at the trial and I have gone through the evidence on record and have heard the argu­ ments of Malik Muhammad Rafiq Khan, the learned counsel for the appellants and Mian Ajmal, the learned Assistant Advocate General for the State, who incidently did not support the convictions. It is apparent from the perusal of the evidence on record that even the factum of the marriage of Sultan with the appellant No. 2 does not inspire confidence. It is admitted position that Mst. Murbat Jan was married to Aurangzeb the younger brother of Sultan and that Sultan was previously married and has another wife. This was admitted by Maulvi MuzafTar Hussain neighbour of Sultan who had also solemnized the marriage. According to this witness marriage of Sultan with Mst. Murbat Jan took place six and half months after the death of her husband Aurangzeb. He also stated that Sultan s/o Shah was one of the witness who conveyed the consent of the bride. However, Sultan s/o Shah had stated that the marriage had taken place three or three and a half years after the death of Aurangzeb. The witness also admitted that there was no writing to evidence the Nikah. It had been con­ tended by the appellant Mst. Murbat Jan that she had not given her consent voluntarily. At this stage, it may be mentioned that Malik Muhammad Rafiq Khan, the learned counsel for the appellant pointed out that under section 6 of the Muslim Family Law Ordinance, 1961, since Sultan was already married, he had to seek permission of Chairman Union Council before he could contract second marriage and there is no mention by him that he sought such per­ mission. This, could be considered merely to add to the weak nature of evi­ dence with regard to the marriage, as failure to obtain such permission attracts penal action, but does not invalidate the second marriage. Be that as it may be, it appears from the perusal of the record of the trial that there was absolutely no evidence about enticing or taking away Mst. Murbat Jan by the accused. The learned Sessions Judge while discussing the case of six accused whom he acquitted observed that not a single witness out of the prosecution witnesses produced by the Prosecution had stated that he saw accused enticing or taking away Mst. Murbat Jan and further that although Allah Dad and Essa Khan were also arrested from Karachi alongwith the appel­ lants, this fact was not sufficient to connect them with the crime. As a matter of fact, there is no evidence at all about abduction or enticement, as according to the complainant his mother Mst. Amir Jan had given him the names of the seven accused who according to her had enticed away Mst. Murbat Jan on 30-12-1981, whereas it is clear that even according to the complainant and his mother, Mst. Murbat Jan had been taken away by her parents and was residing with them. Mst. Amir Jan had just stated that she got information without even caring to give source of such information. The so called letter stated to have been given by the accused Essa to Roshan Din, barber, does not help the prosecut on as it does not even bear a date and cannot be considered as proved, nor could it be considered as admission of any sort, on the part of the two appellants. 10. With regard to the allegation that the appellants and some accused persons had absconded to Karachi , even complainant Sultan had himself left his home in the village and had gone Karachi for employment/Labour. Why should, therefore, any such extreme presumption be drawn or conjecture made about the families of Khan-e-Zaman and Essa Khan having gone to Karachi . 1 1 . With regard to the divorce given by Sultan, he had stated that he given it on 8-4-1982 in accordance with the decision of Jirga. The fact about th ecision of Jirga in favour of divorce shows that there was no marriage or living together by the two appellants at that time, and the fact also supports the contention of Mst. Murbat Jan about her being pressurized into the so called marriage, which was without her consent. The fact that appellants were found living together on 26-6-1982 should not have been considered to be sufficient for proving enticement and abetting enticement as, of the assertion about their marriage after divorce is considered such living together is sufficiently explained. In Sarkar v. Muhammad Younous, a decision of High Court of Azad ammu and Kashmir (reported in 1981 Pakistan Criminal Law Journal 971) where there was no evidence on record to hold that accused either enticed away the woman with intent to have illicit intercourse with her, knowing well that she was married woman, or of actually committed adultery with her—it was held that mere inference of offences on account of alleged recovery of woman from the custody of accused would not be sufficient. The order of acquittal was main­ tained in the circumstances. During the arguments of the learned counsel it was pointed out to them that even if the contention that Nikah of the appellant was held on 7-6-1982 is accepted, marriage would be before the expiry of the period Iddat. As an appellate Court, this Court has authority to consider on the facts brought out on record, even, if the offence chrarged has not been spelt out, whether any other offence hsa been committed. In Badai-us-Sanai by Allama Kasani a famous Hanafi Jurist (Vol. VII pp 35-36), the learned author inter alia expres­ sed the view that intercourse with a woman who is in Iddat of another person will not be punishable with Hadd if he married with her before the expiry of the period of Iddat. According to him "Hadd will not be implemented on him due to the fact that he contracted the marriage with woman who was eligible for that and there is a doubt that he understood that marriage with that woman was not allowed to him. This is according to Imam Abu Hanifa". Develop­ ing his argument, the learned writer further states that, "this Nikah is Nikah-e- Fasid and intercourse in Nikah-i-Fasid does not amount to adultery with con­ census of the Jurists and this is why Hadd of adultery will not be imposed in such case just as in case of intercourse after marriage without witness". To the same effect is section 257 of the Principles of Muhammadan Law by F.D. Mulla (Pakistan edition by Dr. M.A. Manan p. 258), that a marriage with a woman before the completion of Iddat is irregular and not void. 16. For the reasons given it is apparent that there is no evidence on which conviction under section 16 of the Ordinance or abetment of the offence under section 19 of the Ordinance can be sustained. The appeal is accordingly accepted and the two appellants are acquitted. They are on bail and their ail bonds stand cancelled. (TOM) — —— Appeal accepted.

P L J 1983 FSC 240 P L J 1983 FSC 240 (Appellate Jurisdiction) Present: B. G. N. kazi, J GHULAM HASSAN and Another—Appellants Criminal Appeal No. 57/1 of 1983, decided on 29-6-1983. (i) Offence of Zina (Enforcement of Hadooci) Ordinance (VII of 1979)— , Ss. 16 & 10(2)—Enticing of taking away with criminal intent and zina —Offence of—Appellants cousins inter alia and real sister of second appellant also married to appellant No. I—Held: No adverse inference to be drawn from mere fact of their having been seen together. [P. 244] A (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

Ss. 10 & 8— Zina— Offence of—Confession—Proof of—Held: Condi­ tions for accepting confession as admissible evidence against person making same to be much more severe and strict. [Pp. 249 & 251] H & J Tafhimul Quran by Maulana Maudoodi. (P. 335, Vol. Ill) ref. (iii) Zina—

Presumption regarding— Held: Unless there be strong evidence about actual commission of Zina, such presumption not to be drawn on mere conjectures—Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—S. 10 (2). [P. 241] B (iv) Zina—

Allegation of—Proof of—Held: In matters of imputing adultery to woman, strict proof or knowledge about accusation to be required and presumption and conjectures must invariably be avoided. [P. 251] A" (v) Criminal Procedure Code (V of 1898>—

Ss. 200 to 203—Complaint to Magistrate—Procedure—Magistrate passing prompt Order against appellants without issuing any process or holding any preliminary inquiry on mere wrong representation of stranger regarding pendency of criminal matter— Held: Magistrate acted not strictly in accordance with provisions of Criminal Procedure Code. [P. 246] C (vi) Criminal Procedure Code (V of 1898)—

S.364—Confession—Recording of—Legal formalities-Failure to fulfil— Effect of—Magistrate recording confession without observing formali­ ties as required by law— Held: Essential legal formalities required for recording confession having not been fulfilled, alleged confession to be rendered inadmissible. [Pp. 248 & 249] F & G PLD 1971 Lah. 580; AIR 1934 Lah. 230; PLD 1958 Kar. 383 & PLD 1959Lah. 11 ref. (vii) Evidence Act (I of 1872)— ——S. 80—Confession—Recording of—Presumption regarding— Held: Confession to be shown by prosecution to have been recorded in accordance with legal provisions before any presumption be drawn under S. 80. Evidence Act. [P. 247] D (viii) Confession— -—-Meaning of—Held: Confession to be (statement) directly on point admitting facts and leaving no doubt regarding person making confession after understanding matter about offence alleged, admitted commission of same and not to be merely statement of facts presumed or conjectured to be confession—Evidence Act (I of 1872)—Ss. 24 to 30. [Pp. 247 & 248] E Mr, Fazal Ellahi Siddiqui, Advocate for Appellants. Mr. S.Q. Zahidi, Advocate for the State. Dates of hearing: 20/27/29-6-1983. judgment Ghulam Hassan who was charged with enticing and taking away Mst. Ghulam Fatima wife of Ghulam Hyder with the intent that she may have illicit intercourse with him and for committing zina with her and also Mst. Ghulam Fatima aforesaid who was charged with committing offence of zina, were tried by the Additional Sessions Judge, Leiah who convicted Ghulam Hassan under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to R.I. for a term of 5 years and whipping numbering 20 stripes and also to pay a fine of Rs. 3,000/- or in default to under­ go simple imprisonment for a period of 18 months. He also convicted both Ghulam Hassan and Mst. Ghulam Fatima under Section 10(2) of the aforesaid Ordinance and sentenced each of them to R.I. for 7 years, whipping numbering 30 stripes and a fine of Rs. 5.000/- or in default to undergo R.I. for two years. This appeal has been filed against the aforesaid sentences and convictions. 2. At the very outset it is observed that the so called FIR in the case allegedly lodged by Ghulam Hyder is dated 3-6-1981 where as earlier pro­ ceedings were started against the appellants before the Assistant Commissioner , and Magistrate 1st Class ,Lora Lai on 25-5-1981. It may further be observed that although the husband of Mst. Ghulam Fatima namely Ghulam Hyder son of Mehmood was the only person who could have appropriately made allegation or report in the case which incidently involves his own reputation and that of his family, in the instant case it was Ghulam Hassan son of Allah Bakhsh who made application before the A.C. and Magistrate 1st Class, Lora Lai which was in fact, the first intimation about the commission of the offence. It is also remarkable that in the heading of the application he had used the following words which translated in English read as under:— "State through Ghulam Hyder son of Mehmood. versus Hassan son of Mehmood" It, therefore, appears that before the learned A.C. and Magistrate 1st Class, Lora Lai the application was made in such form as to indicate that there was already registered criminal case against appellant Ghulam Hassan at the ins­ tance of Ghulam Hyder husband of appellant Ghulam Fatima, although this was far from the fact. Since on the making of the application the learned Magistrate ordered Jamadar of Levy and other officials to accompany the applicant and further since due to the aforesaid order which was endorsed on the application, the two appellants were actually arrested by the Levies and brought before him, it is considered important enough to reproduce the application with the endorsement on it, which reproduced in English reads as under:— "In the Court of Magistrate, Lora Lai, May God bless you with prosperity. State through Ghulam Hyder son of Mehmood. Versus Hassan son of Mahmood, Caste Baloch, resident of Bait Balu, Muzaffargarh, Police Station, Kot Sultan. In the case of abducted wife of the complainant. Sir, It is prayed that the accused has abducted the wife of complainant. The accused and the abductee have been absconding since the last four months. Now I came to know that both the accused are at present residing with one Haji Abdul Ghafoor Rashi at Sarbolak. It is therefore requested that the Govern­ ment officials may be deputed to get them arrested. I will remain praying. Sd/- Ghulam Hassan son of Allah Bakhsh, caste Baloch, District Muzaffargarh, 25-5-1981. Endorsement on the application made by Ghulam Hassan son of Allah Bakhsh, dated 25-5-1981 by the Magistrate. Reader. Jamadar Levies with the other officials may be deputed to accompany the applicant. Sd/- Magistrate. 25-5-1981." It is apparent from a perusal of the record that the two appellants were arrested on the same date i.e., 25-5-1981 and produced by the Levies before the A.C. and Magistrate 1st Class, Lora Lai where their statements were recorded. I shall consider and Discuss the legality of the aforesaid statements which have been construed as confessions by the two appellants. Suffice is to say at pre­ sent that the so called FIR which was registered as such at Kot Sultan Police Station on 3-6-1981 allegedly by Ghulam Hyder son of Mehmood Zore the husband of appellant No. 2 has not been supported by him on the ground that he had not made the complaint in the first instance but he had been taken to the Police Station by Ghulam Hassan son of Allah Bakhsh who had earlier made the application quoted \in extenso above to the A.C. and Magistrate 1st Class, Lora Lai. In his evidence before the trial Court he did not support the case against the appellants and stated that he had no suspicion ever that the appellants had illicit intimacy. In his deposition he further asserted that appellant No. 1 is the husband of appellant No. 2's sister Mst. Aziz. He further stated that in view of the close relationship and the fact that appellant No. 1 is married to the sister of appellant No. 2, he had never prevented appellant No. 1 from visiting his house. About the FIR he stated that he had been taken to the Police Station by Ghulam Hassan son of Allah Bakhsh and his thumb impression had been taken. Ghulam Hyder husband of appellant No. 2 has further asserted that his wife had not been abducted by anyone but had gone to Lora Lai for harvesting. He also took the stand that he had never complained to police at Lora Lai. He had further stated that he had never accompanied the police to Lora Lai. In his cross examination the witness stated that there was dispute between appellant No. 1 and Ghulam Hassan son of Allah Bakhsh as both of them were ta ing parties to Lora Lai for har­ vesting (labour) and his wife had not gone with Ghulam Hassan son of Allah Bakhsh but had gone with the party of appellant No. 1. He however, ad­ mitted that he had deputed Ghulam Hassan son of Allah Bakhsh who had finished the work at Lora Lai, to bring back his wife from Lora Lai as she had written to him to come and take her. Ghulam Hassan son of Allah Bakhsh had gone there but had not brought back Mst. Ghulam Fatima and that he had tlod him that he was not permitted by appellant No. 1 to bring her back and therefore, he had made report to the police and had managed with the authorities so that, the police would bring back his wife. 3. Ghulam Hassan son of Allah Bakhsh in his deposition had admitted that he was the suitor for the hand of Mst, Ghulam Fatima but she had not been married to him but to Ghulam Hyder. 4. The version as given in the so called FIR was that P.Ws. Koru son of Imam Bakhsh and Sikandar son of Muhammad who were going from Tounsa had seen both the appellants at Lankhan Wala Pattan and appellant No. 1 had told them that since his wife was ill he was taking appellant No. 2 to his house at Tounsa. It was further asserted that both these witnesses had informed Ghulam Hyder about the fact of having seen the appellants together. In their depositions before the trial Court, they have not said anything to support the case of the prosecution against the appellants. It may also be pointed out that although both the witnesses are supposed to have beenk the appellants together at the same time, whereas P.W. Koru stated that they had met them at about 7-8 a.m. P.W. Sikandar had stated that it was afternoon time. Be that as it may, the only fact about seeing the two appellants going together has no bearing upon the commission of the alleged offences by them. P.W. Koru 'had admitted in his cross examination that the two appellants are cousins inter se and also appellant No. 1 is married with the sister of appellant No. 2. Since the parties are Muslims, marriage to sister of the wife is prohibited to them and moreover relationship being of such a close nature appellant No. 1 being the husband of the real sister of appellant No. 2. no adverse inference can be drawn from the mere fact that they were seen together. It is clearly stated by Ghulam Hyder husband of appellant No. 2 that he had permitted her to go with the party of appellant No. 1 for doing labour. 5. The only other evidence led on behalf of the prosecution is that of Abdul Hameed son of Haji Abdul Ghafoor about such conduct on the part of the two appellants which according to the learned trial Judge created a presump­ tion of their having committed the offence of zina. It was the prosecution case that appellant No. 1 had got employment under Abdul Hameed and used to work in his garden and do duty at the tube-well. The appellant No. 1 had with him appellant No. 2 for whom the appellant No. 1 had requested Abdul Hameed for providing labour. It was this witness Abdul Hameed who was stated to ave provided a room for esidence of the two appellants. However, in his cross examination the witness had stated that Mst. Ghulam Fatima appellant No. 2 used to live with his women folk and appellant No. 1 used to stay at the tube-well and he had denied that he had seen both the appellants living to­ gether as husband and wife. He has clearly stated that appellant No. 1 used to live during the night hours at the tube-well and appellant No. 2 with his women folk. He has further asserted that the Levies had arrested both the appellants from different places. 6. Except for the evidence discussed above, there was further evidence of Ghulam Hassan son of Allah Bakhsh who was summoned as a Court witness. He had admitted the relationship between the parties and had fur­ ther stated that Mst. Nazir is the wife of appellant No. 1. He had however, stated that the two appellants were suspected of being on terms of illicit inti­ macy. He had further stated that his party had gone to the area of Tehsil Tounsa for harvesting and that appellant No. 2 was in one party and he was in the other party. Ghulam Hyder had not gone for harvesting. After the harvesting both the appellants had gone to Lora Lai. He further stated that complainant Ghulam Hyder had. asked him to go to Lora Lai for bringing her back but appellant No. 1 had refused to allow appellant No. 2 to go with him and therefore he had complained to the A.C. and Magistrate 1st Class, Lora Lai. In his cross examination this witness has admitted the fact that he had asked for the hand of Mst. Ghulam Fatima who was ultimately married to Ghulam Hyder. 7. It is apparent from the evidence on record that after the arrest of the two appellants at Lora Lai the case was got registered at Police Station, Kot Sultan and Ghulam Hassan son of Allah Bakhsh had admitted that he had taken a letter of Khawaja Suleman Tounsvi to SHO, Kot Sultan for registration of the case. The difficulty in registering the case is obvious because of the action that had already been taken which had ended in the arrest of the two appellants and their detention at Lora Lai. It is also apparent from the evi­ dence of Abdul Ghafoor. Head Constable that Ghulam Hassan son of Allah Bakhsh had accompanied him to Lora Lai for bringing the two appellants to Kot Sultan. ASI Amanullah Khan who on 3-6-1981 was Incharge of Police Station, Kot Sultan had made it clear that the two appellants were arrested and taken into custody from jail authorities on 16-6-1981. The ASI had further admitted that complainant Ghulam Hyder had not accompanied the police party to Lora Lai although Abdul Ghafoor, H.C. had stated that comp­ lainant Ghulam Hyder had also accompanied him to Lora Lai. Amanullah Khan had further admitted that he had gone to Lora Lai on receiving a wireless message. He had further admitted that it is true that Khawaja Suleman is a political and spiritual leader of Tounsa and a man of influence. 8. The evidence of Dr. Mushtaq Ahmad who examined appellant No. 1 and gave the opinion that the appellant was able to perform sexual act could have no connection at all with the proof about guilt of the two appellants as undoubtedly appellant No. 1 is married to Mst. Aziz. Similarly the evidence of Dr. Firdaus Ara Mirza who examined appellant No. 2 Mst. Ghulam Fatima is of no consequence at all inasmuch as Ghulam Hyder husband of appellant No. 2 had stated in his evidence that his wife was pregnant at the time that she had gone for labour with the party of the reapers. On the contrary looking to period during which the two appellants are stated to have been living together the evidence that on 20-6-1981 appellant No. 2 was having 8 months pregnancy makes it conclusive that pregnancy could not be attributed to appellant No. 1. 9. It is apparent from the discussion of the evidence on record that so far as the oral evidence of the witnesses is concerned. It is to say the least insuffi­ cient for proving the commission of the offence by the appellants. The con­ jecture of the trial Court that the appellants had lived in the room provided by P.W. Abdul Hameed and therefore, there was presumption of their having committed zina, cannot be accepted as there is no evidence on record that they had lived in the same room and on the contrary as deposed by Abdul Hameed, appellant No. 2 was sleeping with his womenfolk. The appellants being Muslims, on the contrary, the presumption should have been drawn as indicated by the evidence of Abdul Hameed that although appellant No. 1 had been given a room, appellant No. 2 used to sleep with other women folk in his house. Sura Nisa (IV) verse 23 of the Holy Quran prohibits marriage to two sisters at one and the same time. The prohibition is included under ithe general prohibition against marriage with mothers, daughters, sisters etc., [and therefore unless there is strong evidence about the actual fact of zina, such presumption should not have been drawn on a mere conjecture. The allegation that appellant No. 1 did not allow Mst. Ghulam Fatima—appellant No. 2 to go with Ghulam Hassan son of Allah Bakhsh should in fact have been under­ stood as objection by a "Mahrarri within the prohibited degrees to allow his wife's sister to go escorted by a 'Namahram' who had previously asked for her hand in marriage and had been refused. However, the learned trial Judge has also depended on the so called confessions of the two appellants made in their statements before the A.C. and Magistrate 1st Class, Lora Lai. 10. With regard to presumption as to documents produced as record of evidence, section 80 of the Evidence Act, 1872 provides that before such pre­ sumption can be drawn with regard to statement or confession of any person it has to be shown that the same was taken in accordance with law. No doubt the evidence of Mr. Mirani Khan, A.C. Lora Lai was recorded at the trial and he has stated that on 25-5-1981 Ghulam Hassain son of Allah Bakhsh had submitted an application to him (the aforesaid application has already been reproduced above in extenso). It is in his evidence that Baluchistan Levy produced the two appellants for recording their statements. Here I would pause to consider as to on the basis of which complaint the Baluchistan Levy could have started the investigation. It is apparent that the entire action taken by the A.C. and Magistrate 1st Class, Lora Lai was not strictly in accordance jwith the Cr.P.C. There was no preliminary inquiry held or ordered to be held. There is no issue of process' against the two appellants but on the mere wrong representation of Ghulam Hassan son of Allah Bakhsh purporting to show that he was giving information about a pending criminal matter, a prompt order was passed asking the Levy and officials concerned to accompany Ghulam Hassan sonof Allah Bakhsh and the two appellants were actually arrested and brought before the learned Magistrate. There was no complaint of the hus­ band of appellant No. 2 on which action could have been taken and the appli­ cation shows that although there were no criminal proceedings pending against the two appellants, in the heading of the application it was sought to show that in fact such criminal case was pending. The expedient of mentioning the husband as complainant in the application was also due to the fact that the Criminal Law (Special Provisions) Ordinance, 1968 made the offence of adultery under section 14 thereof cognizable only on complaint made by the husband. 11. A question has arisen whether the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 applies to Lora Lai which is Provincially Administered Tribal Area of Baluchistan as shown in Article 246 of the Constitution. It was further contended that as such the provisions of the aforesaid Ordinance had to be extended by the Provincial Government under Article 247 of the Constitution. In this respect reference was made to Notification No. 127-H.D. (TA. III)/79-II dated 31st May, 1979 issued by the Government of NWFP making the Ordinance alongwith 4 other Ordinances applicable to the Provincially Administered Tribal Areas of NWFP. Mr. S.Q. Zahidi, the learned counsel for the State sought adjournment to find out the position and he has stated that inspite of his best efforts he could not contact the Advocate General, Baluchistan for making the enquiry with regard to the matter. The question whether the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 applies to Lora Lai is not important for decision of this appeal as the trial and convic­ tion are by the Additional Sessions Judge, Leiah where undoubtedly the aforesaid Ordinance applies. Under the Ordinance proof of offence of zina could only be by confession of a person accused of offence before a Court of competent jurisdiction of by evidence of witnesses. It is, therefore, necessary to consider whether the statements made by the appellants can be called con­fessions for the purpose. 12. In any case before the presumption about the confessions recorded is to be drawn under Section 80 of the Evidence Act, it was for the prosecution to show that the same had been recorded in accordance with the legal provi­ sions. For reasons already given the confessions could not have been recorded in connection with the offence under Section 14 of the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance II of 1968); as there was no comp­ laint by the husband. 13. Since the trial at Leiah was under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by Section 20 whereof the provisions of the Cri­ minal Procedure Code, 1898 are made applicable mutatis mutandis in respect of cases under the Ordinance, it is necessary to consider whether the statements recorded by the A.C. and Magistrate 1st Class, Lora Lai could be considered as evidence. The power to record statements and confessions has been provided for under Section 164 Cr.P.C., 1898. It is provided that Magistrate of 1 st Class may record any statement or confession made to him in the course of in vestigation under Chapter XIV of the Code but as already stated, it is apparent that no such investigation under the aforesaid Chapter had taken place. Even otherwise under sub-section (2) of section 164 aforesaid, such confessions shall be recorded and signed in the manner provided in Section 364 Cr.P.C. and under sub-section (3) the Magistrate before recording any such confession shall explain to the person making it that he is not bound to make a confession and if he does so it may be used as evidence against him and further the Magistrate is required by questioning the person making it, to satisfy himself that the same was being made voluntarily and further requirements of sub­ section (3) aforesaid is that he shall make a memorandum at the foot of the record, in the words which read as under:— "I have explained to (name) that he is not bound to make a confession and that if he does so, any confession he make shall be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct and it contains a full and,true account of the statement made by him. 14. There is nothing on record to show that any of the provisions men-j tioned above were complied with in recording the so called confessions of the! E two appellants. Moreover the confessions to be called as such should be directJy on the point admitting facts which leave no doubt that the person making the confession, after understanding the matter about offence alleged had admitted commission of the same and should not merely be a statement of facts from which it could be plumed or conjectured to be a confession. Replies to interrogation by the Magistrate can under no circumstances be considered a voluntary confession. 15. Section 364 Cr. P. C. which is about recording statement of the accused makes it necessary that every question be put to accused and every answer given by him is to be recorded in full and again under subsection 2 of Section 364 Cr.P.C. the Magistrate or Judge shall certify in his own hand that the examination was taken in his presence and hearing and contains a full and true account of the statement made by the accused. No such memoranda as required under the aforesaid Section were ever appended to the statements made by the appellants. It is, therefore, not a matter of doubt in the instant case that the so called confessions were re­ corded without observing any formalities as required by law and therefore the so called confessions could not be admitted in evidence at all. Since the con­ fessional statements were not made in an inquiry or trial and further since there was no investigation at all at the time, the same cannot be treated as made under Section 164 or Section 364 of Cr.P.C. 16. A perusal of the statements made by app llants Ghulam Hassan and Mst. Ghulam Fatima would show the same do not amount to confession about committing zina. The presumption is made by the learned trial Court in the case of Ghulam Hassan stating as under:— "I am married. The name of my wife is Nazir Ghulam Fatima. I have a son from this wife namely Majeed",It is rather doubtful whether at all the appellant could have added name was Ghulam Fatima after naming Nazir who according to the evidence on record is his wedded wife being sister of Ghulam Fatima. With regard to the so called confession of appellant No. 2 she is stated to have said, on being interrogated, that appellant No. 1 was her husband but she had not married him till that time and would marry him. She is further stated to have said that her marriage had not taken place earlier. It is not easily understandable how she could make such contradictory statements unless due to fear or due to assertions of Ghulam Hassan son of Allah Bakhsh who was present and who had got the two appel­ lants arrested. The provisions referring to the record of confessions as al­ready stated had been completely overlooked. It is also evident that at the time the statements were made the two appellants had been brought by the Levy and were in their custody. There is admission by the learned A.C. and Magistrate 1st Class, Lora Lai that the accused were arrested after his order, and on the very day Baluchistan Levy produced them before him for state­ ments which were recorded. There is nothing at all to indicate that the re­ quisite information that he was a Magistrate had been given to the appellants. On the contrary in their statements before the Court they both stated that they did not know who was the person before whom they had been produced. The learned Magistrate had also admitted in cross examination that he had re­ corded the statements as dictated without making any such indication and that he had not given the memorandum as required under Section 164 Cr.P.C. in the statements. He has further admitted that he had recorded statements immediately when accused were produced before him without giving them any time for contemplation. 17. In Ghulam Muhammad v. The State (reported in PLD 1971 Lahore 580) it was inter-alia observed that when warning administered by the Magis­ trate did not conform to the one prescribed in sub-section (3) of Section 364 Cr.P.C, such failure was enough to vitiate confessions. Reference was also made to Jehangiri Lai and others v. The State (AIR 1934 Lahore 230) wherein it was observed that half an hour's time should be allowed to a prisoner to compose himself and to consider whether he would like to make a confession or not. In Talib Hussain and another v. The State (reported in PLD 1958 (W.P.) Karachi 383) it was held that time for reflection given to a confessing accused should succeed the warning and not precede it and further that it was necessary to question the accused as to why he was confessing. Similar observations with regard to requisite warning to be given by the Magistrate were made in the State v. Allah Yar (reported in PLD 1959 (W.P.) Lahore , 11). 18. From the above discussion it is quite apparent that the A.C. and Magistrate 1st Class, Lora Lai did not fulfil the -essential legal formalities re­ quisite for recording of confessions and therefore, the same are rendered in­ admissible. 19. The position under the law of Shariah with regard to cases of zina in which there is no evidence which could be considered as proof but where there is confession of the accused is that it requires more strict conditions for con­ sidering a statement as a confession. In this espect the nature of the confes­ sion that s considered sufficient has been stated in Tafhimul Quran by Maulana Maudoodi at page 335, Vol. Ill while explaining the Quranic verse of Surah Noor: — It is, therefore, apparent that the conditions for accepting confes­ sions as adtrussible evidence against the persons making it are much more severe and strict according to the Sharioh. The two statements recorded by the learned A.C. Lora Lai cannot be considered as confessions to prove the offence of zina. It is also apparent that there is no evidence recorded whatsoever which could be considered to be sufficient for proving the ofience under Sec­ tion 16 of the Offence of Zina (Enforcement of Huddod) Ordinance, 1979 as against the appellant Ghulam Hassan. 21. Before I conclude this judgment I feel it is my duty to obsepe that in matters of imputing adultery to a woman the enormity of the allegation should be realised and there should be strict proof or knowledge about the accusation before it is made. Presumptions and conjectures must invariably be avoided. The Islamic view about the matter is expressed in SwoA Noor (XXIV, Verse 23) which as translated in English by A. YusufcAli read as under:— "Those who slander chaste women, Indiscreet but believing, Are cursed in this life And in the Hereafter: For them is a grievous penalty,' 2.1 In view of the reasons given above, the convictions recorded by the Z ditional Sessions Judge, Leiah cannot be sustained and, therefore, the appeal of the two appellants is allowed and their convictions and sentences set aside and they are acquitted. They are hereby ordered to be released forthwith if they are not required in any other case. (TQM) Appeal allowed.

P L J 1983 FSC 252 P L J 1983 FSC 252 (Appellate Jurisdiction) Present: ali hussain qazilbash & zahoorul haq, JJ MUHAMMAD NAWAZ ere.—Appellants versus THE STATE—Respondent Criminal Appeal No. 125/1 of 1982, decided on 8-11-1982. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 16—Enticing or taking away or detaining with criminal intent— Offence of—Silence of prosecutrix for one month—Effect of—Prosecutrix remaining with appellants for nearly one month, travelling in different buses and residing in various houses, undergoing Nikah ceremony in pre­ sence of number of persons and even appearing in court in support of her complaint against her father, but never uttering any word about her abduction— Held: Silence of prosecutrix for one month about her ab­ duction to establish her having eloped with appellants and case of abduc­ tion thus to fall on ground. [P. 256] B (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VH of 1979)—

Ss. 10(2), 11, & 16— Zina and abduction—Offences of—Untruthful witness—Testimony of—Prosecutrix taking inconsistent and contradic­tory stands (on different occasions)— Held: Court to be fully justified in disbelieving such untruthful witness. [P. 257] D (Hi) Criminal Trial— Investigation—Dishonesty on part of investigating agency—Effect of— Prosecutrix in zina and abduction case not got medically examined for about seven days of her coming back home— Held: Ulterior motive and bad faith and intentions to be attributed on part of investigating agency—Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—Ss. 10 (2), 11 & 16. [P. 256] C (iv) First Information Report—

Delay in lodging of—Explanation of—Report about abduction lodged nearly about one month after date of occurrence—Explanation that complainant of his own tried to get his daughter back remaining absolutely uncorroborated on record.—Held: Occurrence having taken place by known persons in very presence of eye-witnesses and police post also being not away from spot, delay of nearly one month in lodging FIR to render its authenticity extremely doubtful—Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—Ss. 10(3), 16 & 11. [P. 255] A Mr. Sardar Ishaq Khan, Advocate for Appellants. Mr. Mohammad Aslam Uns, Advocate for State. Dates of hearing: 7/8-11-1982. judgment All Hnssain Qazilbash, J. —Mohammad Nawaz alias Majop son of Muhammad Baig resident of Chak Buzarg, Tehsil and District Gujrat, Nazar Muhammad alias Nazra son of Muhammad Din, resident of Jumat Tehsil and District Gujrat and Nawab Baig son of Mirza Allah Ditta resident of Muhallah Mujadid Abad, Jhelum were charged under sections 10(3) /16 and 11 of the Ordinance VII of 1979 for the abduction and rape of Mst. Sughran Bibi daughter of Hakim Ah'. They were tried by the learned Additional Sessions Judge, Gujrat who vide his judgment dated 31-8-1982 while acquitting Nawab Baig of the offence, convicted Mohammad Nawaz alias Majoo and Nazar Mohammad alias Nazra under section 11 of the above Ordinance and sen­ tenced each of them to imprisonment for life and 20 stripes each. Both the appellants were also to pay a fine of Rs. 5,000/- each, or in default of payment whereof to undergo two years further R.I. Through the same judgment both the appellants were also convicted under section 10(3) and each sentenced to 10 years' R.I. plus 20 stripes each and a fine of Rs. 5000/- each. In default of the payment of the said fine they are ordered to undergo two years further R.I. The sentences were however, directed to run concurrently. 2. The facts in brief of the case are that on 7-10-1981 at 6-45 p.m. Hakim Ali appeared at police post Tanda and made a report which was recorded by way ofMarasila by Ghulam Rasool H.C. No. 294 alleging therein that on 9-9-1981 t Peshi Wela his two daughters Mst. Sardaran Begum and Mst. Sughran Bibi were cutting grass in their filed situated at a distance of 1 mile towards east of the village. In the meantime Mohammad Nawaz alias Majoo and Nazar Mohammad alias Nazra who are closely related inter se came there on a mare and pounced upon Mst. Sughran Bibi, on which Mst. Sardaran Begum made hue and cry. He was grazing his cattle nearby, was attracted to the spot on the alarm raised by Mst. Sardaran but in the meantime, both of them picked Mst. Sughran Bibi in their clasp and made her sit on the mare threatened them not to raise any alarm otherwise they will be killed, both got on the back of the mare and put her to gallop towards Tanda. Mohammad Nawaz alias Majoo had abducted his daughter for the purpose of marriage and that he had been trying till today for return of her hand but on their refusal the pre­ sent report. 3. After recording the said Marasila which is Ex-PC Ghulam Rasool sent the same to Police Station Karianwala, Tehsil and District Gujrat, on the basfe of which Khalid Akhlaq H.C. drew a formal F.I.R. which is Ex-PC/I and registered the case under section 11 of the Ordinance VII of 1979 against the three appellants. The case was entrusted to Zar Mohammad A.S.I. for inves­ tigation, who on 8-10-1981 went to the spot and prepared its site plan Ex-PW/9-A. Zar Mohammad (P.W. 9) arrested Mohammad Nawaz alias Majoo on 13-10-81, and the same day he recorded the statement of Mst. Sughran Bibi under sec­ tion 161 Cr.P.C. Mst. Sughran Bibi was also produced before a Magistrate at Gujrat where her statement under section 164 Cr.P.C. was also recorded. She was also got medically examined by the lady doctor at Aziz Bhatti Shaheed Hospital Gujrat on 14-10-1981. Mohammad Nawaz was also got medically examined for his potency. On 19-10-1981 Zar Mohammad P.W. went to the house of Nawab Baig accused at Jhelum and prepared its site plan correctly which is Ex-PW/9-B. He arrested Nazar Mohammad accused on 30-10-1981 and got him medically examined for his potency on 3-11-1981. Nawab accused was also arrested on 9-11-1981, He handed over one sealed envelope con­ taining the vaginal swabs of Mst. Sughran Bibi to Barkat Ali F.C. who handed t over to Saghir Anwar F.C. intact for its onward transmission to the Chemical Examiner Lahore which was accordingly done by Saghir Anwar P.W. After re­ cording the evidence of the witnesses the challan was put in the Court for trial. 3. At the trial the prosecution in support of its case has produced as many as 10 witnesses. The appellants and Nawab the acquitted accused in their statement under section 342 Cr.P.C. denied the charge of abduction and rape. Mohammad Nawaz alias Majoo in answer to a question as to why this case against him deposed that Mst. Sughran Bibi P.W. is a widow aged about 25/ 26 years and she desired to marry him but her parents did not agree. She being a woman beyond the age of 16 years voluntary came and accompanied him to village Khojiyanwali Police Station Kunjah Tehsil and District Gujrat and contracted marriage with him, Nikah was performed in the presence of respectables as well as the Nikah Khawan and the Registrar. The marriage has uly.been entered in the nikah register maintained at village Khojiyanwali. He never coerced Mst. Sughran Bibi to make a statement or to thumb impress any paper whatsoever. The case is as a result of high handedness of the police. He pleaded innocence. Nazar Mohammad supported the statement of Mohammad Nawaz alias Majoo his co-accused and stated that Mst. Sughran Bibi is the legally wedded wife of Nawaz who is the son of his maternal uncle He refuted the charge of abduction and zina of his part. The defence in sup­ port of its case produced Maulvi Muhammad Hayat, Amam Masjid of village Khojiyanwali as D.W. 1, Ghulam Qadir son of Ahmad Din, Nikah Khawan as D.W. 2, Ch. Muhammad Munir Gondal, Advocate as D.W. 3 and Ch. Sharif Abid, Magistrate First Class Gujrat as D.W. 4. The learned trial court how­ ever after considering the case in its entirety has convicted and sentenced the appellants as given above. Hence the present appeal. 4. The learned counsel for the parties for and against the appeal has been heard and the record gone through with their assistance. In this case the pro­ secution in order to bring home the charge to the appellants besides the prosecutrix has produced two other witnesses in the person of Hakim Ali (P.W. 6) and Mst. Sardaran Begum (P.W. 7) father and sister respectively of Mst. Sughran Bibi the prosecutrix. They have furnished us with the oculr version of the incident. All the above witnesses have not only shown the presence of each other at the spot at the crucial time but are also one in alleging that Mst. Sughran Bibi P.W. was abducted by the two appellants and carried her by force on a mare. The version as to the commission of offence of rape has however been furnished by Mst. Sughran Bibi alone. ' 6. The occurrence according to the prosecution took place on 9-9-1981 at Peshi Wela when the prosecutrix and her sister Mst. Sardaran Begum were allegedly busy in cutting grass in the fields and their father was also present in the nearby fields grazing his cattle. The distance of the place of occurrence is only 4J miles from police post but the report was lodged nearly one month after the date of occurrence and the explanation, in taking so long a time, in lodging the report is that the complainant was trying on his own to get his daughter back but when failed in his efforts he made a report. This explana­ tion has gone absolutely un-corroborated, as there is nothing on the record as to how and on how many occasions Hakim Ali, and through whom he had cried for the restoration of his daughter. His daughter Mst. Sardaran Begum has not said a single word in support of his father in this regard. This explanation is also unconvincing. Our attention was, however, invited to that portion of the judgment of the learned trial court where the above explanation was accepted and while making other observations it held that the explanation fur­ nished by Hakim Ali was not unusual or querr phenomenon. This, we must say, is an unrealistic approach on the part of the learned trial court. In the social set up in which we live, once and young woman goes out of her house or is taken away, the news spread like a wild fire and the matter cannot be kept secret. The parents and whole family is disgraced and dishonoured that very moment and very little is left with them to undo the wrong. We have seen that in almost every case of similar nature this plea is taken but we have never taken in seriously because we have not come across a single case where in such a situation punchaits and personnel efforts have borne fruits. Ob­ viously it is a lame excuse and is pleaded to cover up the time consumed enrope unconcerned people and it is precisely with this intention that the Superior Courts have always seen with suspicion the cases where a report is made with an inordinate delay. In this particular case, had it been a delay of one or two days or had the abductors been unknown to the complainant then the delay would have been excused but where the delay is of nearly a month, the occurrence having taken place in a broad day light in the very presence of eye­witnesses and the police post is not way from the spot, it can not be taken lightly and the only conclusion that can be drawn is that the report was lodged after the deliberation and consultation, thus rendering its authenticity extremely doubt­ful. 7. As to the abduction of Mst. Sughran Bibi P.W. besides the prosecutrix herself we have the supporting evidence of Hakim Ali (P.W. 6) and Mst. Sardaran Begum (P.W. 7). Though the witnesses are not interested yet from the careful perusal of the version given by them we see that they are not telling the truth and have contradicted each other on various important points. At the trial Hakim Ali (P.W. 6) deposed that Mst. Sardaran Begum P.W. was given fist blows by Nazar Mohammad appellant and also that the appellants had tied her hand at her back and that he (Hakim Ali) united her hands. But these facts he conveniently omitted to mention in the First Information Report. At the trial Hakim Ali P.W. also deposed that appellants while carrying Mst. Sughran Bibi P.W. had gagged her mouth and gave her fist blows but again these facts do not figure in the F.I. R. Ex-PC. This witness at the trial had denied to have stated in the F.I.R. that Nazar Mohammad appellant abducted Mst. Sughran P.W. for the purpose of marriage. Besides the above, the very pre­ sence of Hakim Ali P.W. 6 has become doubtful because Mst. Sardaran Begum P.W. 7 in her statement to the poiice to which she was duly confronted did not state that her father was present grazing his catties in-'the nearby fields «tnd that he reached the spot at the crucial time on her alarm. Similarly Mst. Sughran P.W. has ommitted to show the presence of her father in the nearby field at the relevant time in her statement under section 161 Cr.P.C. Ex-DC. The fact that Hakim Ali P.W. was not present at the spot is further highlighted by the site plan where his presence has not been shown. Mst. Sardaran Begum also deposed at the trial that at the relevant time her mouth was gagged but she did not say so in her statement recorded by the police. Mst. Sardaran Begum P.W. had admitted that when her sister was being forcibly taken she left her dopatta and shoe at the spot but these articles were neither taken possession of nor produced by the prosecution. Similarly the Khurpas which was allegedly being used by the two sisters, was neither found nor produced by the prosecu­ tion. The above contradiction coupled with a delayed report makes the very presence of these witnesses highly doubtful and thus their versions of the occurrence cannot be relied upon. 8. Now we are left with the version of the prosecutri;; alone. Though she had given the version of her abduction more or less in the same terms which her father and sister had given but her statement also has suffered from the same infirmities in that she did not state in her statement to the police Ex-DC as to giving her blows by the accused, the tying of hands of Mst. Sardaran Begum or taking out of Churra by Majoo accused, or that she beseached the accused to spare her etc. Mst. Sughran was a widow and she knew the appellants. She remained with the appellants allegedly for about a month and in different houses. She was allegedly made to travel in different buses which used to stop on place to place. She also appeared in the Court of a Magistrate where her statement Ex-DB in support of her complaint under sections 452/506 P.P.C. against her father was got recorded. Subsequently she underwent the nikah ceremony with Nawaz appellant in the presence of a number of persons, she lived in the house of Nawab the acquitted accused who according to the investi­ gation officer was having his family with fully grown up sons in the same house but at no occasion and in no place the prosecutrix ever uttered a single word about her abduction or for that matter, subjecting her to illicit intercourse. But once back home, a circumstance shrouded in mystery, she took a somer- B sault refuted the marriage and levelled the charges of abduction and rape against the appellants. This conduct of the prosecutrix obviously is the result of the police and family pressure. Her silence for about a month about her abduc­ tion goes a long way to establish that she had eloped with the appellants. The case of abduction thus falls to the ground. As to the allegations of rape against the appellants is concerned, we have on record no other evidence except the statement of the prosecutrix. She has alleged that after abducting her the appellants took her near village Bhagowal and from there Nawaz alias Majoo appellant made her to board a bus and took her to Jhelum and lodged her in the house of Nawab where Nazra appel­lant also arrived at midnight and it was in the house of Nawab (the acquitted accused) where both the appellants subjected her to illicit intercourse at night time and that Nawab used to act as a guard. She was then taken to Gujrat where under constant threats and pressure she was made to make a statement in the Court of Magistrate as directed by the counsel; that she was taken to Jhelum where she was forced to thumb mark some written and some blank papers. Then she was taken to village Chak Buzarg by Nawaz appellant where one night when he was sleeping she slipped away, reached her village after 28 days of her abduction. The occurrence is alleged to have taken place on 9-9-1981. If we take her version that she was back home at shiri time after 28 days as correct, then the date of her arrival would come to 7-10-1981 and on that very day at 6-45 p.m. the F.I.R. was lodged by the father meaning that she had the whole day of 7-10-1981 at her disposal to narrate the whole episode to her father but strangly enough there is nothing in the First Information Report against the appellants as to the commission of sexual intercourse with the prosecutrix. Thus the very F.I.R. has completely demolished the case of rape alleged to have com­mitted by the appellants upon Mst. Sughran Bibi. Strangely again the investi­ gation agency took her statement under section 161 Cr.P.C. Ex-DC on 13-10-1981 i.e., exactly 6 days of her coming back home, her statement under section 164 Cr.P.C. Ex-DD on 14-10-1981 then again a third statement under section 161 Cr.P.C. Ex-DE on 24-10-1981 and there is no explanation, what­ soever as to why the investigation agency took so long a time to get her state­ ments recorded. The reason is quite obvious inasmuch as during all this period the police, the kith and kin must have been presurizing her to charge the appellants for subjecting her to sexual intercourse. The dishonesty on the part of the investigation agency is also discernible from the part that she was got medically examined on 14-10-1981 i.e., about 7 days of her coming back home. In a case where rape is alleged why the police took 7 days to get her medi­ cally examined. This obviously again.has been done with ulterior motive and bad faith and intentions. .Even otherwise no reliance can be placed on the prosecutrix in view of her inconsistent and contradictory stand. When she appeared in the Court of a Magistrate at Gujrat on 14-9-1981, her first appearance in any court, she gave out that no body has abducted her and that she wanted to marry Nawaz appel­ lant of her own free well Ex-DB refers. Had it-not been at so there was no hurdle in her way to state in court, it being a safest place that she had been ab­ ducted and subjected to sexual intercourse. But once she came to the clutches of the police she turn tunlsd and gave a different version. This shows how untruthful witness she is and therefore we wou'd be fully justified in dis­ believing her altogether. In view of the above there exists hardly any ground with us to disbelieve the defence taken by the appellants. We therefore, accept their appeal and acquit them of the charges accused of. They have been ordered by us to be released forthwith if not required in any other case. (TQM) Appeal accepted.

P L J 1983 FSC 257 P L J 1983 FSC 257 (Appellate Jurisdiction) Present: aftab hussain, C.J. , ch. muhammad SiorftQ & malik ghulam An, JJ. SARWAR—Appellant versus THE STATE—Respondent Criminal Appeal No. 156/1 of 1982, decided on 15-2-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 7— Zina —Offence of—Adulthood of male—Evidence of— Held: Evidence of Doctor about ability of male for committing sexual inter­ course alongwith report of Chemical Examiner on analysis of vaginal swabs taken by Lady Doctor during medical examination of victim to be sufficient evidence of adulthood of male. [Pp. 258 & 259] C PLJ 1982 FSC 72 (74) ref. 09 Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— —S. 7— Zina —Offence of—Adulthood of male—Evidence of— Held: Incase of any evidence of ejaculation by male during intercourse, such male to be adult not entitled to benefit of Section 7 of Ordinance. [P. 258] B (iii) Federal Shariat Court— Practice & procedure—Judgment—Announcement of—Further argu­ ments—Issuance of notice for—Federal Shariat Court after announcement of judgment issuing notices to both counsel for further arguments on particular point—/?/:/: Judgment having not beei recorded and signed at time of announcement Court to be competent tc Heir farther arguments. [P. 258] A (iv) Words and Phrases—

Potency—Meaning of—Held: Potency to be ability of male to develop or maintain benle erection sufficient to conclude coitus to orgasm and ejaculation. [P. 260] D Modi's Medical Jurisprudence and Toxicology (22nd Edn.) p. 303 ref. Mr. Muhammad Bashir Kiyani, Advocate for Appellant. Mr. Q.H. Zahidi, Advocate for the State. Date of hearing : 15-2-1983. judgment Aftab Hussain -C. J.— This appeal was heard by a Single Bench consisting of the Chief Justice on the 30th of January, 1983. After hearing the counsel for the parties, it was announced that the case was proved in its entirely against the appellant but he was entitled to the benefit of section 7 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (VII of 1979). The sentence was announced to be refused to 5 years' R.I. thirty stripes and Rs. 5,000/- as fine (in default one year's R.I.). At the time of writing the judg­ ment it was observed that though the appellant had given his age as 15 years in his statement under section 342 Cr.P.C. but there was the evidence of the Doctor, who found nothing on medical examination which could point out to an abnormality making him unfit for sexual intercourse. The other piece of evidence which clinches the matter is the positive report of the Chemical Examiner who found the vaginal swabs taken by the Lady Doctor from the prosecutrix to be stained with semen. Under these circumstances notices were issued to both the learned counsel for further arguments on this point. This could be done under the law because the judgment had not been recorded and signed at the time of announcement. 2. The learned counsel for the appellant relied upon Muhammad Hussain v. Muhammad Ramzan (PLJ 1982 FSC 23) in which the case was held to fall under section 7 despite positive report of the Chemical Examiner who found semen in the veginal swabs. He, therefore, argued that this case was binding upon the Single Bench. 3. Faced with this decision it was considered advisable to refer the matter to a Full Bench. In these circumstances this matter has come up before this Bench only to consider the question whether any case in which there is evidence of the Doctor about capability of the male to commit sexual intercourse and the positive result of the analysis by the Chemical Examiner of the vaginal swabs taken by the Lady Doctor on examination of the victim of the sexual act, the male can be held to be a non-adult to claim privilege of the benefit of section 7. 4. We have heard both the learned -counsel at length. It is clear from section 7 that a person becomes adult. In the case of a male when he attains the age of eighteen years or attains puberty. The term "puberty" is defined in Sharia, in case of male as a stage of age when he may have wet-dreams or may ejaculate or impregnate. (See Fath-ul-Qadeer by Imam. Ibne Hamam Vol. 8 page 201 and Ainul Hidaya Vol. 3 page 747). In these circumstances it cannot be denied that if there is any evidence of ejeculation by the male during inter­ course, he is an adult and is not entitled to the benefit of section 7. The evi­ dence of the Doctor about capability of the male for committing sexual inter­ course alongwith the report of the Chemical Examiner on the analysis of the (Vaginal swabs taken by the Lady Doctor during medical examination of the (victim is sufficient evidence of adulthood of the male. This was so held by a Full Bench of this Court in a case [PLJ 1982 FSC 72 (74)]. In that case it was held that on the date of occurrence the age of the convict could be only 16/17 years. The prosecution had not proved by medical evidence that he had attained puberty and this could have been proved by the Chemical Examiner's report on the swabs., if it had been positive. But that evidence was not forthcoming. In these circumstances it was held that the appellant was entitled to the benefit of section 7 because of the age limit of 18 years for adulthood. The above finding is sufficient to dispose of this matter. 5. During arguments some doubt was created on the question whether the word "puberty" used in section 7 is synonymous with the word "Buloogh". It is stated in Lane's Dictionary that "Buloogh" means to have puberty i.e., " (has wet dreams). 6. According to the Medical Dictionary also the meaning of puberty appears to be the same. In Butterworth's Medical Dictionary Second Edition (page 1408) puberty is defined as "the epoch in a person's life at which the sex glands become active. In the male, the testes enlarge and spermatocytogenesis begins. The external genitalia increase in size, hair develops on the face, trunk, the axillae and the public region; the larynx grows and the voice becomes deeper. There is considerable muscular development and body growth, asso­ ciated with important psychological changes. In the female the ovaries, uterus and vagina enlarge, menstruation begins, the breasts increase in size and hair appears in the axillae and the pubic region. Psychological changes occur as the girl matures towards adolescence and womanhood." 7. So far as a female is concerned, it is stated that her puberty begins from menstruation. The language of the definition proves that in the case of male also apart from physical development noted therein as well as growing of auxiliary and pubic hair, enlargement of testes, one criterian is that spermato­ cytogenesis begins. Spermatocytogenesis is a fitness of a person to have sexual action which no doubt begins at ejaculation. Consequently the defini­ tion of puberty in Medical Dictionary is also not different. 8. Modi considers this question under the heading "Causes of impotence and sterility in the male" He says:— "Boys are considered to be sexually potent at the age of puberty which usually occurs at the fifteenth or sixteenth year. Sexual intercourse is, however, possible at about the thirteenth or fourteenth year, as the power of coitus commences earlier and ceases later than the power of procreation. The' changes which occur in a boy at puberty are the development of the genital organs, the ability to secrete semen, the growth of hair on the pubes, axillae and chin, and the increase in size of the larynx leading to the deepen­ ing of the pitch of the voice." (Modi's Medical Jurisdprudence and Toxi­ cology 1979, 22nd Edition, page 303). 9. Potency and puberty in male are related terms. Potency is the ability! to develop or maintain a penile erection sufficient to conclude coitus to orgasm! D and ejaculation. (See Ibid, Definition of impotency). 10. The answer to the question before the Full Bench is in the negative. There is no doubt that the sense of potency in the Medical Science and Buloogh in Sharia is not different. This disposes of the reference, (TQM) Order accordingly.

P L J 1983 F S C 260 P L J 1983 F S C 260 (Appellate Jurisdiction j Present : aftab hussain, C J, muhammad siddiq & malik ghulam ali, JJ MUHAMMAD ABB AS-Appellant versus THE STATE—Respondent Criminal Appeal No. 54/L & 50/L of 1983, "decided on 10-9-1983. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S, 20(1) Proviso Second [as added by Offence of Zina (Enforce­ ment of Hadood) (Amendment) Ordinance (XX of !980)] read with Constitution of Pakistan, 1973—Art. 203-DD — Federal Shariat Court—Appellate jurisdiction of— Held : Appellate jurisdiction of Federal Shariat Court being exclusive in nature, appeal against orders of Sessions Judge (in offences punishable under Ordinance) to lie to Federal Shariat Court and nowhere else— Held furthr : Only one appeal to be competent against whole of order or deciesion (and not against any part thereof) passed by Court of Sessions. [P. 268JX (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

-S. 20 (1) read with Criminal Procedure Code (V of 1898)—S. 235— Series of acts forming same transaction—Commission of offences in—Court of Sessions Trial for by—Offender commuting different offences including one covered by Ordinance— Held : Sessions Judge if competent to try and award punishment for other offence'offences such other offence/offences also to be cried alongwith offence/offences, under, Hadood Ordinance. [P.?69]£ (iii) Offence of Zina (Enforcemnnt of Hadood) Ordinance (VII of 1979)— —Ss. 20 (1)& 18 read with Criminal Procedure Code (V of 1898)— S. 235 and Pakistan Penal Code (XLV of I860)—Ss.- 302/34 & 449— . Series of acts forming same transaction—Commission of offences in— Trial for—Appellants allegedly going to house of deceased to commit zina with her and each of them making actual attempt to achieve that object— Held: Sessions Judge in circumstances to be competent to try accused under S. 18 of Ordinance (VII of 1979 as well as under Ss. 302/34 & 449 of Act XLV of 1860. [P.270 ]F (iv) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— —S. 20 (l)read with Constitution of Pakistan, 1973—Art. 203-DD— —Court of Sessions—Orders of conviction of—Appeal against— Held: Order of conviction passed by Sessions Judge under Ordi­ nance VII of 1979 as well as Pakistan Penal Code (XLV of 1860) for all purposes to be treated as order under S. 20(1) of Ordinance appeal against which to be competent before Federal Shariat Code— Held farther : No exception to be taken either against trial and convic­ tion of accused persons for different offences or competency of appeal before Federal Shariat Court [P. 270]<7 (v) Criminal Procedure Code (V of 1898)—

S. 161 read with Evidence Act (I of 1872)—S. 32—Police Officer —Recording of statement by—Dying declaration—Treatment of state­ ment as—Statement recorded by Investigating Officer under S. 161, Criminal Procedure Code during investigation treated as dying dec­ laration by trial Court— Held: Mere fact of such statement having been recorded by Investigation Officer himself not to make same inadmissible in evidence. [P. 27JJ0 (vi) Criminal Procedure Code (V of 1898)—

S. 235—Series of acts forming same transaction—Commission of offences in—Trial of— Held : Question of different offences forming (or not) (same transaction) to depend on facts of each particular case and no generalization to be possible—Purpose of different offences allegedly committed by accused persons being to commit zlna with deceased, ail different offences committed in course of same transac­ tion— Held : Such different offences committed in one series of acts being so connected together and related to one another in point of purpose so as to form same transaction to be tried together in same trial. [P. 26]J8,C&D (vii) Federal Shariat Court —

Jurisdiction of— Held: Federal Shariat Court being creation of Constitution, jurisdiction of such Court not to be easily ousted— Constitution of Pakistan, 1973— Ch. 3-A. (P. 270} H & J PLJ 1983 FSC 37 re/. (viii) Jurisdiction— —Ouster of—Held: ousted. [P. 270]/ Jurisdiction of superior Courts not to be easily (ix) Dying Declaration— - -- Form tf—Held : No particular form having been prescribed by statute for dying declaration, same to be written, oral or even by gestures and to be recorded by Magistrate, Doctor, Police Officer or even by any publicman— Evidence Act (I of 1872) — S. 32. |P. 271) L (x) Dying Declaration — -- Value of — Held: Value of dying declaration to be judged in each case keeping in view facts and circumstances of that particular case — Evidence Act (I of 1872)— S. 32. [P. 27l]M (xi) Dying Declaration — -- Police Officer — Recording of declaration by — Held: Mere fact of dying declaration having been recorded by police officer during investigation under S. 161 Criminal Procedure Code not to make same inadmissible in evidence— Evidence Act (I of J872) — S. 32 & Criminal Procedure Code (V of 1898)— Ss. 161 & 162. [P. (xii) Dying Declaration— -- Reliance upon— Dying declaration inspiring confidence and giving full and accurate details of occurrence-r—Even no enmity or motive (to falsely implicate accused) alleged against police officer recording such statement— Held: Statement being truthful and genuine and result of no tutoring by any interested person, trial court rightly believed and relied upon same—Evidence Act (I of 1872)—S. 32 & Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) -S. 20(1). [Pp. 271 &272]P& N PLJ 1977 SC 401 followed. (mi) Criminal Trial—

Evidence—Discrepancies—Effect of— Held: Minor discrepancies in statement of witness to be but natural especially when same recorded after lapse of about 18 mamhs. [P. 274]R (xiv) Criminal Trial—

Evidence—Police officer—Obliging remarks by—Effect of—Police officer making obliging remarks without any material available in record to substantiate same and (with object of) showing favour to ac­ cused— Held: No importance to be attached to such remarks of police officer— Held further : Appellant having participated in occurrence righily held guilty alongwiih co-accused. [P. 215]S& T (xt) Criminal Trial.

Substitution—Motive for—No Serious motive or enmity alleged against complainant party to falsely implicate accused persons— Investigation of case also never got entrusted to some other indepen­ dent agency and even no attempt made by appellants in this regard— Held : Substitutions for real culprint in present age of awakening to be rather difficult. [P. 21Q]K (xvi) Criminal Trial—

Substitution for real offenders—Plea of—Deceased not shown to have been inflicted injuries by some other accused persons let off by complainant (father of deceased)—Even no suggestion of any setilement with real assailant put to such complainant by appellants — Held : Keeping in view normal human nature and conduct neither deceased nor her farther to have any sympathy with her murderer to allow him to go scot-free— Held further : There being no settlement with real assailant, defence plea of substitution to be rejected. [P. 276JJ7 Ch. Rafique Ahmad Bajwa, Advocate and Mr. Shaukat Rafique Bajwa, Advocate for Appellant. Mr. Farooq Bedar, Advocate for the State. Date of hearing : 22-6-1983. judgment Mohammad Siddique, J.—The Sessions Judge, Gujranwala vide impugned judgment dated 28-3-1983 convicted and sentenced the two accused persons as under :— Muhammad Abbas under = 10 years R. I. plus a fine of section 499 PPC Rs. l.OOO/- or in default further R. I. for 6 months. Under Section 302/34 PPC Under Section 18 read with section 19 of the Ordinance. Death plus a fine of Rs. 5.000/- for in default thereof further R. I. for one year 10 years R. I. plus whipping numbering 10 stripes. In case the sentence of death is not confirmed but the conviction is main­ tained then all the sentences of imprisonment were ordered to run con­ currently. The period spent by this accused as under trial in this case shall be deducted from the sentence awarded to him. It was ordered that Muhammad Abbas accused shall be hanged by neck till his death. Ejaz Ahmad under Section 449 PPC Under Section 302/34 PPC Under Section 18 read with Section 19 of the Ordinance. R. I. for 5 years plus a fine of Rs. 500/- or in default thereof further R. I. for three months. Imprisonment for life and a fine of Rs: 5000/- or in default there­ of further R. I. for one year. Two years' R. I and whipping numbering 5 stripes. All the sentences of imprisonment were ordered to run concurrently. The trial Court further directed that out of fine if realized then its 4/5th, shall be given to the legal heirs of the deceased. The learned Sessions Judge made a reference to this Court for the confirmation of death sen­ tence. Muhammad Abbas convict challenged his convictions and sentences through Criminal Appeal No. 54/L of 1982 filed through Mr. M. Dilawar Mahmood, Advocate. Ejaz Ahmad alias Jajji convict has filed a separate Criminal Appeal No. 50/L of 1983 through his counsel Mr. Rafique Ahmad Bajwa, Advocate. Since the reference and the appeals arise out of the same judgment they shall be disposed of by this Judgment. 2. In support of its case the prosecution produced 10 witnesses. Doctor Harbans Lai (PW. 1) on 19-8-1981 at 4.15 p.m. medically examined Mst. Nasreen, daughter of Asghar Ali and found the following injuries .on her person ;— • 1 2. 3. 4. 5. 6. Incised wound shoulder. Incised wound 1 CMx J CM muscle deep on 3 CM inner to injury No. 1. Incised wound 6 CMx 3CM muscle deep on back of left upper arm in lower part, Incised wound 7 CM X 2 CM muscle deep on inner side of left forearm in lower part. Incised wound 3 CM X 1 CM going deep on the front of abdomen on right side 5 CM from umblicus, intestines were coming out of the wound. 1 CM muscle deep 2 CM behind injury X Incised wound 2 CM No. 3. Her condition was serious and she was semi conscious. Injury No. 5 was grievous whereas others were simple : all were caused by sharp edged weapon within duration of 'fresh'. female casualty ward." She was admitted in the On 19-8-1981. ASI Zultiqar AH PW submitted an application Ex. P. B enquiring whether Mst. Nasreen was fit to make a statement or not and vide note Ex. PB/1 this doctor declared her unfit to make a statement. Again on 25-8-198! the same ASI made a similar application Ex- PC and vide note Ex. PC/1 the doctor had declared Mst. Nasreen fit to make a statement PC Abdul Raui' (PW 2) escorted the deadbody of Mst, Nasreen to mortuary for postmortem examination. M.H.C. Muhammad Asghar (PW. 3) received from ASI Zulfiqar Ali PW a sealed parcel contain­ ing blood stained earth with the direction that he should send the same to the office of the Chemical Examiner, Lahore Accordiegly, on 2-9-1981 he sent the said ssaled parcel to the office of the Chemical Examiner Lahore through FC Muhammad Azam PW. Again on 6-9-1981 ASI Zulfiqar Ali PW gave him a sealed parcel containing blood stained Churri pertaining to this case which he kept in the malkhana and sent the same intact to he office of the Cheminal Examiner. Lahore on 14-9-1981 through F.C. Muhammad Azam PW, So long the sealed parcels remained in bis custody nobody tampered with them. Ch. Muhammad Ibrahim, Draughtsman (PW, 4) prepared site plan Ex.PD and PD/1 at the instance of the police. In cross-examination this witness has admitted that the place of occurrence is surrounded by many houses and shops and is situated in a thickly populated street. F C Muhammad Azam (PW. 5) as mentioned above took the sealed parcel and delivered the same intact in the office of the Chemical Examiner, Lahore . Muhammad Amin (PW 6) attested the recovery memo Ex. PE of blood stained scrapings taken from the duri and bethak of the house of Asghar Ali. Ghulam Rasool (PW. 7) is the formal witness who identified the deadbody before the doctoi at the time of postmortem examination. Doctor Muhammad Zahir (PW. 8) on 29-8-1981 at 1.45 p.m. conducted p.m. examination, of the deadbody of Mi.'. Nasreen, daughter of Asghar Ali, and found the following injuries on her person :— "1. Stitched wound 3 CM with two stiches on top of left shoulder. 2. Stitched wound with five stitches 6 CM long on the back of lower part of left upper arm. 3. Stabbed wound 1 CM 3 CM inner to injury No. 1. 4. Stitched wound 2 CM with two stitches 2 CM behind injury No. 2. 5. Stitched wound 6J CM with six stitches on front of abdomen 5 CM from umblicus at its level towards right side. 6. Stitched wound 7 CM with six stitches on lower part of inner side of left fore arm. 7. Lamparotomy 17 CM with 16 stitches on front of middle of abdo­ men, above the umblicus. On internal examination, abdominal walls were found injured under injury No. 5, peritonium was injured under injury No. 5 and covered by yelowish slough all over. There were two cuts in stomach, pancreas was also injured and covered with yellowish slough. Small intestines were also injured, the rest of the organs were healthy. All injuries were caused by sharp edged weapon. Injury No. 5 was grievous, but remaining were simple. In my opinion death occurred due to peritonitis as a result of toxaemia, on account of

a]«-y No. - witwas sufficient to cause death in the ordinary course oi nature". Asghar Ali (PW. 9) is the father of Mst. Nasreen deceased lit has -fa , tl.at his wife died 8/9 years ago, leaving behind four children nami-u, M<!t. Nasreen deceased, Khadim Hussain, Mst. Shamim and Akbnr Alt, The deceased was the eldest and Was used to manage his home affaiis. During the days of occurrence he was employed in the factory of Haji Amiruddin situated on Hafizabad Road . He knew both the accused Abbas and Ejaz accused. They usually used to roam about on College Road . On the day of occurrence he was ill and therefore did not go to factory to perform his duties there. At about 2 P. M. he left his house for purchasing vegetable etc,, leaving behind his deceased naught er Mst. Nasreen and her younger sister Shamim. At about 3 P. M. when he was returning to ^ < house he saw two persons entering the main gate of his house. He fi­ nished to his house and saw that Abbas accused was attempting to open u string of the shalwar of his daughter Mst. Nasreen deceased bin she •• - resisting. Ejaz accused armed with Churri was suu.dmg . «e. Abr>;< accused caused injury to the deceased in the flank on right siue in o; i«t : force her to leave her string. Ejaz Ahmad accused gave a blow hiiting « , the shoulder but she kept her hand on her string. Abbas accused repeat rx the blow bitting on the arm. 4th blow was given by Ijaz which also hit or the arm. Two more injuries were caused by accused one by Abbas and the other by Ijaz accused. This witness claims so have seen the occurrence while standing in the durt. He raised alarm which attracted Nadcern Hussain and Ham Din and other residents of the locality. Oa seeing these persons both the accused persons left the place and ran away holding their respective Churri in their hands saying that if anybody came near them they would kill him. His neighbour idrees and Sanaulls aud others took Mst. Nasreen to the Hospital in a rikshaw. After a short time Asghar Aii also reached the Hospital. On receipt of information AS I Zuifiqar AH P W reached the Hospital and recorded the statement Ex. PG of Asghar Aii complainant. This witness also attested ihe recovery memo Ex. P J of Churri P. 1 recovered at the instance of Abbas accused. The complainant also produced torn blood stained shirt P. 2, blood stained shalwar P. 1, DupattaP. 4 and torn blood stained piece of brassier P. 5 which were taken into possession by the Police vide memo Ex. P J, thun>'; marked by him. A S I Zuifiqar Ali (PW 10) is the Investigating Officer hi this case. At the relevant time this Police Officer was in she District Court when he received information that Ms!. Nasreen in injured condition had been taken to D. H. Q, Hospital. He therefore reached the Hcspiui and submitted an application Ex. P B to the doctor enquiring from him as to whether she was fit to make a statement or not, through note Ex. P B/i the doctor declared her unfit to make a statement. The Police Officer Un­recorded, the statement Ex. P G of Asghar Ali father of Ms>. Nasreen and sent the same to the Police Station for formal registration of the F I ft Ex. PG/1. This Police Officer inspected the spot, collected blood staint 1 scrapings from the place of occurrence arid made it into a. sealed parui vide memo Ex. P E. The complainant Asghar Ali produced before him shirt P. 2 totally torn shalwar P. 3 Dupatta P. 4 and portion of brassier P. 5 all blood stained, which he took into possession vfcte memo Ex. PJ. bV prepared rough sketch of the place of occurrence Ex. PK. Off and on he fa.ni been enquiring from the Hospital whether Mst. Nasreen had gained con - ciousness and was fit to make statement or not. On 25-8-198! he again visited the Hospital and submitted an application Ex. P C to the doctor enquiring as to whether the injured was fit to make a statement or not. Through certificate Ex. P C/l the doctor declared her fit to make the state­ ment. Then this Police Officer recorded her statement Ex. PL under Section 161 Cr. P C. On 29-8-1981 after receipt of information that Mst. Nasreen had died in the Hospital, this Police Officer went there and took her deadbody under his supervision and after preparing injury statement Ex. P M and inquest report Ex. PN despatched the deadbody to mortuary for P. M. examination under the escort of Abdul Rauf P. W. He arrested the accused on 2-9-1981 and interrogated about the crime weapons. Abbas accus­ ed after making disclosure, led the Police party to a place near Alam Chowk Hafizabad Road and from these got recovered blood stained Churri P. 1 which was lying in a ditch. The same was taken into possession and was made into a sealed parcel vide memo Ex. PH. He prepared the rough ketch of the place of recovery Ex. P H/l, and he gave sealed parcels containing blood stained earth and Churri to the M. H. C. with the direction that he should send the same to the office of the Chemical Examiner, Lahore . He got prepared site plans Ex. P D/l from Muhammad Ibrahim Draughtsman. After the completion of the investigation he challaned the accused persons. 3. Ejaz Ahmad in his statement recorded under Section 342 Or. P. C. denied the prosecution allegations and stated that this case was made against him due to enmity created by the elections with the father of the deceased and Abdul Sattar When asked if he wanted to say anything else, he stated as under : — "I am innocent. My age was less than 16 years at the time of occurrence. I produce Ex. D. B. my school leaving certificate". Muhammad Abbas accused also made a similar statement denying the prosecution allegations. The accused persons produced no evidence in defence. The trial Court convicted and sentenced the accused persons as mentioned above. 4. We have heard at length the learned counsel for the parties and have also perused the entire material available on the record. 5. Mr. M. Dilawar Mahmood. the learned defence counsel has raised a preliminary plea that reference to this Court by the Sessions Judge. Gujranwala was not legally correct as according to him, the learned Sessions Judge was trying this case as ordinary murder case under the Code of Criminal Procedure and not under the Hudood Ordinance. We do not agree with him. The allegation of the prosecution against the accused persons was that in order to commit rape with Mst. Nasreen deceased daughter of Asghar Ali they had committed house tresspass of the com­ plainant. Since she did not yield their desire and when they tried to cut the string of her shalwar by force, she resisted their attempt and conse­ quently in order to over-power her, they caused injuries to her with their respective "Churries" which ultimately resulted in her death. On these allegations the trial Court framed the charge against the accused persons under Section 449 P P C, Section 18 read with Section 19 of the Ordinance and under Section 302/34 P P C, It is in this factual back­ ground that we have to see whether the case was triable under the Ordinance or under the Code of Criminal Procedure. In order to appre­ ciate ihis point we have to examine the legislative history of this enactment. 6. On 2-12-1978 Shariat Benches of Superior Courts Order, 1978 (President's Order No. 22 of 1978), was published for general information, and was to come into force on the 12th day of Rabi-ul-Awal 1399 A. H. (9th February, 1979). Under this Order in each High Court a Bench to be alled the Shariat Bench of the High Court was to be constituted. The power and jurisdiction of such Shariat Benehes was to examine and decide the quesMon whether or not any law or provision of law was repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Similarly the Shariat Appellate Bench was to constituted in the Supreme Court to hear appeals against the judgments of the Shariat Benches of the High Courts. 7. By Constitution (Amendment) Order 1979 (President's Order No. 3 of 1979) dated the 7th February, 1979 in the Constitution of Pakistan in Part VII after Chapter 3 a new Chapter 3A was inserted. This Chapter created Shariat Benches of Superior Courts and in each High Court a Bench called the Shariat Bench was constituted to examine and decide the question whether or not any law or provision of law was repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Any party to any proceeding before a High Court under Article 203D. aggrieved by the final decision of the High Court, could prefer an appeal to the Supreme Court. 8. On 9-2-1979 the following Ordinances/Order called Hudood Ordinances/Order were promulgated by the President of Pakistan and they were to come into force on the 12th day of Rabi-ul-Awal 1399 A. H. (9-2-79) :— 1. The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979). 2. The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979). 3. The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979). 4. The Execution of the Punishment of Whipping Ordinance, 1979 (IX of 1979). 5. The Prohibition (Enforcement of Hadd) Order, 1979 (P. O. No. 4 of 1979). 9. Constitution (Amendment) Order 1980 (President's Order No. 1 of 1980) was published for general information on 26th May, 1980 and •Chapter 3 A in Part VII of the Constitution was substituted with a new Chapter 3A and Federal Shariat Court was set up under Article 203 C of the Constitution. Under Article 203D, this Court on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, may examine and decide the question whether or not any law or provision t of law is repugnant to the Injunctions of Islam as laid down in the Holy •Quran and the Sunnah of the Holy Prophet (PBUH). Thus up to this stage this Court was conferred only original jurisdiction in certain matters. Under Article 203F any party to any proceeding before the Federal Shariat Court under Article 203 D, aggrieved by the final decision of that -Court may prefer an appeal to the Supreme Court. 10. The Constitution (Second Amendment) Order, 1980 (President's Order No. 4 of 1980) was promulgated on 21st June, 1980. Under this Order after Article 203 D the following new Article 2U3DD was inserted in the Constitution :— 203-DD. Further jurisdiction of the Court,— The Court shall have such other jurisdiction as may be conferred on it by or under any law". Simultaneously on the same day f. e., 21st June, 1980 the Offence of Zina (Enforcement of Hudood) (Amendment) Ordinance 1980 (Ordinance 20 of 1980) was published for general information and Section 20 of the main Ordinance was amended and in clause (1) after the proviso the following further two provisos were added :— "Provided further that an offence punishable under ibis Ordinance shall be triable by a Court of Sessions and not by a M-pistrate authorised under Section 30 of the said Code and an appea > ji an order of the Court of Session shai! lie i »it Federal Shariat C>mt. Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be held at the headquarters of the Tebsil in which the offence is alleged to have been committed." (Note : —This proviso is not relevant for the purposes of the present case). Similar amendments were introduced in the other Hudood Ordinances/Order referred to above. A mere perusal of the above quoted proviso clearly shows that (a) an offence punishable under the Ordinance was made triable by a Court of Session instead of a Magistrate authorised under Section 30 of the Code ; and (b) an order of the Court of Session was made appealable to the Federal Shariat Court. Thus the appellate criminal jurisdiction was conferred upon this Court for the first time on 21-6-1980 by first making a provision in the Constitution and then conferring jurisdiction in the Ordinance and other Hudood Ordinances/Order. 11. The use of the word 'shall' in the above proviso is rather significant to show the nature of the appellate jurisdiction of this Court in such matters. Even otherwise the language used in this proviso leaves no room for any doubt that appeal against such orders of the Sessions Judge shall lie to the Federal Shariat Court and nowhere else. In other words this appellate jurisdiction of the Federal Shariat Court is exclusive in nature. The words 'an appeal' also indicate that only one appeal to the Federal Shariat Court is contemplated under this prvciso. Same is the position about the words 'an order of the Court of Session which clearly mean the whole of such order or decision which the Court of Session is competenl to pass and not a par or parts thereof. If the argument of the learned defence counsel is accepted then one appeal for the conviction under Section 18 of the Ordinance could lie before this Court while under Sec­ tions 302/34 and 449 PPC before she High Court. In such a situation the possibility of conflicting judgments being given by two Superior Courts against one and the same judgment and the same set of evidence could not be ruled out. Apart from this absurdity it will also involve great hardship and immense expense to a convict appellant for fighting litigation before two different superior Courts. 12. A joint trial of such different offences could be valid before the Sessions Judge under Section 235 of the Code of Criminal Procedure which is reproduced below :— "235. Trial for more than one offence, — (I) If, in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for, every such offence. (2) Offence falling within two definitions. —If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined, or punish­ ed, the person accused of them may be charged with, and tried at one trial for, each of such offences. (3) Acts constituting one offence but constituting when combined a different offence. —If several acts of which one or r.,ore than one would by itself or themselves constitute an offence, constitute when com­ bined a different offence, the person accused of them snay be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one or more, of such acts in this section shall affect the Pakistan Penal The different series of acts tion because they are so related to one another in point of purpose. We arc conscious that the question whether distinct offences form part of the same transaction or not, must depend on the facts of each particular case and no generalization is possible. In the instant case however, we entertain no doubt in our minds that the purpose of all different offences was the same t. e., to commit zina with Mst. Nasreen deceased and therefore all different offences were committed in the course of same transaction and therefore, could be tried together in one trial. 13. The trial of the different offences was also valid under first proviso to clause (I) of Section 20 of the Ordinance which is reproduced below :— "20— (!) The provisions of the Code of Criminal Proceduce, 1898, hereafter in this section referred to as the Code, shall apply, mutatis mutandis, in respect of cases under this Ordinance. Provided that, if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to cry thai ' offence and award punishment therefor, be convicted and punished for that offence." The simple meaning of the above quoted first proviso is that if an offenderl has committed different offences one of which is covered by the Ordinance! and the other by some other law then if the Sessions Judge is competent! to try that other offence or offences and to award punishment 'here("or!~ then that offence or offences will also be tried along with the offence under Hudood Ordinance. In ihe instan; rase it is not disputed that the learned Sessions Judge was competent to try and punish the offender under Section 302/34/ and 449 PPC. Thus both the ingredients of the above proviso are satisfied in the instant case and therefore these offences under the Penal Code were rightly tried alongwith the offence under Section 18 of the Ordinance. It is further not denied that the purpose for which the present appellants are alleged to have gone to the house of the deceased was to commit zina with Mst. Nasreen and made actual attempt to achieve that object and therefore, the offence was clearly covered under Section 18 of the Ordinance. The Sessions Judge in these circumstances was competent to try the accused under Section 18 of the Ordinance as well as under Section 302/34 and 449 PPC. Consequently it can safely be held that under first proviso to sub-section (I) of Section 20 of the Ordinance, the order of conviction passed by the Sessions Judge under the Ordinance as well as the Penal Code for all pusposes has to be treated as an order under Section 20 (1) of the Ordsnance and consequently appeal would be competent Before this Court which has got exclusive jurisdiction under the Ordinance. The result is that in the circumstances no exception can be taken either against the trial and conviction of the accused-persons by the trial Court "or different offences or competence of the appeal before this Court. 14. Apart from the above reasoning there is another principle which is attracted in this case. As mentioned above the Federal Sharial Court is one of the important Superior Courts of the country and is the creation of the Costitution and the jurisdiction has also been conferred upon it under the Constitution. In view of the well-recognized principles of interpretation of statutes, the jurisdiction of such a Court is not to be easily ousted. This Court has already held so in Fazal Din's aase reported in PLJ. 1983 F. S. C 37 after relying upon Maxwell on the Intepretation of Statutes. 15. There are certain special features of this case which have to be kept in view before considering the case on merits. It is not disputed that Mst. Nasreen deceased received injuries at the time and place and in the manner alleged by the prosecution. The nature of injures found on the person of Mst. Nasreen deceased indicates that they were caused from very close range and therefore there could be no doubt about the identification of her assailants. The occurrence took place in broad day light at 3.00 P. M. in the house of Asghar AH complainant situated in a thickly populated locality. Mst. Nasreen deceased on the receipt of first injury must have raised hue and cry which should have attracted the neighbours to the place of occurrence who should have witnessed the occurrence or at least the assailants. It is no body's case that it was an un-witnessed occurrence. Certain neighbours were cited as eye-witnesses but were given up as having been won over by the accused persons. There is no suggestion or even an indication that Mst. Nasreen deceased was injured by some other assailant and the present accused persons have been substiuted for the real culprit. Apart from the fact the substitution in this age of awaken­ ng is rather difficult, the conduct of the accused party which otherwise seems to be quite influential, should have been different and they could leave no stone unturned to bring this fact to the notice of the appropriate Authorities in order to bring the real culprit to, light. The record however, K is completely sient on this point. Moreover there should be strong motive to let off the real culprit and to falsely implicate the present accused persons. If there had been any substance in such allegation, the investiga­tion of the case could easily be got entrusted to some other independent agency. No serious motive or enmity is alleged against the complainant party to falsely implicate the accused persons. 16. On merits the main attack of the learned defence counsel is that the statement of Mst. Nasreen recorded by the Investigating Officer ASI Zulfiqar AH P W 10 under Section 161 Cr. P C ( Ex. PL ) on 25-8-1981 V could not be treated as dying declaration, under Section 12 of the Evidence Act. According to him, it was a mere Zimni. No particular form is pres­ cribed by the statute for dying declaration. According to Section 32 of the Evidence Act it can be written, oral or even by gestures. It can be recorded by any one—a Magistrate, a Doctor, public man or Police Officer However, the value of dying declaration is to be judged in each case, keeping in view the facts and circumstances of that particular individual xsase. The mere fact that it was recorded by the Police Officer during investigation under Section 161 Cr. PC could not make it inadmissible in evidence because clause 2 of Section 162 of the Code of Criminal Procedure has Inter-alia clearly provided that any statement falling within the pro­ visions of Section 32 clause 1 of the Evidence Act would not be hit by Section 162 Cr.P.C. "Clause 2 of Section 162 Cr.PC is reproduced below :— "162. Statement to police not to be signed ; use of such statements in evidence : (2) Nothing in this section shall be deemed to apply statement falling within the provisions of section 32, clause (1) of the Evidence Act, 1872 or to affect the provisions of section 27 of the Act," Clause (I) of Section 32 of the Evidence Act reads as under :— "(1) When it relates to cause af death. —When the statement is made by person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause ofthat person's death comes into question. Such statements are relevant whether the persons who made theHi was or was not, at the time when they were made under expectation of death, and whatever may be the proceeding in which the cause of his death comes into question". A mere perusal of the statement of Mst. Nasreen made before the Investi­ gating Officer shows as to how she was injured by the accused persons which ultimately caused her death. Thus so far the admissibility or relevancy of dying declaration is concerned no exception can be taken against it. Keeping in view the provisions of Section 32 of the Evidence Act read with clause 2 of Section 162 of the Code of Criminal Procedure reproduced .above, it can reasonably be held that a statement recorded by the Investigating Officer under Section 161 Cr. PC during investigation can be treated as dying declaration. The learned defence counsel has not been able to point out any provision of law to hold to the contrary. Thus no objection can be taken against the admissibility of such dying declara­ tion and the mere fact that it was recorded by the Investigation Officer himself under Section 161 Cr. PC would not make it inadmissible in .evidence. The Police Officer lias enumerated the circumstances in which the said statement was recorded by him. He approached the doctor on the first day on 19-8-1981 when Mst. Nasreen was admitted in the Hospital e?iquiring whether she was fit to make a statement or not but the doctor -Jedared her unfit to make any statement. Subsequently also he has been enquiring from the doctor about the fitness of Mst. Nasreen to make a statement and it was ultimately on 25-8-1971 when the doctor certified that she was fit to make a statement and then the Investigating Officer recorded her statement (Ex. PL) She died as mentioned above on 29-8-198!, After determining the admissibility of the dying declaration

:i us examine its evidentiary value. This dying declaration is reproduced. below ; — 5-8-1981 «tj>- 17. We have minutely scrutinized the above dying statement and find that it inspires confidence and gives full and accurate details of the occurr-nce and how she was inflicted injuries by the accused persons ASI Zulfiqar Ali PW 10 has categorically stated that be recorded the said statement of Mst. Nasreen under Section 161 Cr. PC without addition or omission. No enmity or motive is alleged against this Police Officer by the defence. If he wanted to fabricate such statement he could do so earlier without any reference to the doctor. He took necessary pre­ caution to enquire from the doctor whether she was fit to make a statement or not. It was only when the doctor certified that she was fit to make a statement then this Police Officer recorded her statement. The learned defence counsel has cited several authorities regarding the evidentiary value of such statements. We however feel that we are Constitutionally bound to follow the majority view expressed by Anwarul Haq J as he then was \nZarifsKhancase reported in PLJ 1977 SC 481. His lordship after referring to various authorities enunciated the principle in the following words : — "that a dying declaration stands on the same footing as any other piece of evidence and has 10 be judged in the light of surrounding At Pp, 494 & 495. circumstances and with reference to the principles governing the appreciation of evidence in criminal cases. It cannot be laid down as an absolute rule of law nor even of prudence; that a dying declara­ tion cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine. In order to test the reliability of a dying declaration, the Caurf has to keep in view the various circumstances like the opportunity of the dying man for observation, and whether the capacity of the deceased to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control, whether the statement had been consistent throughout if he had made several dying declaration ; and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interest­ ed parties. It also goes without saying that the exact contents of the dying statement should be proved by reliable evidence, and for this reason a dying statement recorded by a competent Magistrate in the proper manner in the words of the maker of the declaration would obviously carry greater weight than an oral statement which may suffer from all the infirmities of human mtmory and human character. If the Court comes to the conclusion that the dying dec-. laration was the truthful version as to the circumsiances of the death and the identity of the assailants there is no need for further corroboration. But if it appears to be unreliable by itself, or suffers from some infirmity, then it cannot form the basis of a conviction without corroboration." 18. Applying the above quoted principle to the facts of the instant case we are clearly of the view that the dying statement of Mst. Nasreen is truthful and genuine and is not the result of tutoring by any interested person. Accordingly, we are clearly of the view that this statement has been rightly believed and relied upon by the trial Court. We also believe that statement. 19. Another important piece of evidence available in this case is the statement of Asghar Ali complainant. He is the father of Mst. Nasreen and on the day of occurrence claims to be on leave from his employer due to sickness. At the relevant time he had gone to the bazar to purchase vagetable etc., and >n his return be saw the occurrence. He has fully supported the prosecution version, He was subjected to lengthy cross-examination but the defence could not shake his credibility. The .learned defence counsel has tried to point out certain discrepancies and .{contradiction in his statement but we do not attach much importance to nthem for the reason that such discrepancies are but natural especially (when the statement is recorded after a lapse of about 18 months. Accord­ ing to the learned defence counsel this witness was on duty and therefore could not see the occurrence and that is why he could not accompany bis injured daughter to the Hospital. If it had been so, the same could easily be proved from the record of his employer, but the defence made no such attempt. The trial Court has already given several reasons for his not accompanying his daughter to the Hospital. After minute scrutiny of his statement we are convinced that he saw the occurrence and has given the true account of the occurrence. The trial Court has rightly believed the testi mony of the complainant. 20. Mr. Muhammad Rafique Bajwa the learned defence counsel for Ejaz Ahmad has contended that his case is distinguishable from the other accused as no weapon has been recovered from him. He also relies upon the report under section 173 Cr. P.C. prepared by S.H.O. Masood Ahmad in which it is mentioned as under : — As mentioned earlier the Investigating Officer in this case was A. S. 1. Zulfiqar Ali (P W. 10) who has made no such concession in favour of this accused. The S. H. O, it seems, merely submitted the final challan and even did not appear as a witness in this case. We arel clearly of the view that the above obliging remarks have been madeL by this Police Officer in order to show favour to this accused, otherwiseP there is no material available on the record to substantiate such remarks.' On the oiher hand, Mst. Nasreen in her dying statement as Well as her father Asghar Ali (P W) have specifically attributed certain injuries of the deceased to this accused. Even this Police Officer placed this accused in column No. 3 as an accused person alongwitb co-accused Muhammad Abbas and challaned him. If there had been any truth in this assertion, the defence could easily produce this Police Officer as a witness and then after his cross-examination his assertion could be tested. The presence of this accused as the spot has been admitted even by this Police Officer. As observed earlier the accused persons seem to be influ­ ential and this may be the result of that influence that this Police Officer has tried to oblige this accused. Accordingly in the circumstances we attach no importance to the above remarks of this Police Officer. We_ are satisfied that this accused was not only present at the spot but he also participated in the occurrence and therefore has been rightly held guilty alongwith co-accused. 21. Although the learned defence counsel have not seriously argued the defence plea yet we have considered the same but find no subs­ tance in it. Muhammad Abbas accused in his statement recorded under section 342 Cr. P. C. has stated that this case was made againsr him due to enmity with the complainant created by preceding B. D. elections. Similarly Ejaz Ahmad, accused has stated that the case was the result of enmity created by the election with the father of the deceased and Abdul Sattar It is an admitted fact that Asghar Ali father of the deceased was not himself a candidate in the preceding B. D. election. As regards the enmity with one Abdul Sattar, the details of that enmity are completely missing and it is not shown how the present occurrence could be the result of such enmity in the B. O. Elections and how this occurrence could be connected with those elections, The complainant has denied his association with any political group in the said elections. He has merely stated that Muhammad Aslam Butt Mayor of Gujranwala . Corporation has contested election from his Mullah and he was his supporter and did not know Abdul Sattar Councillor. The said Muhammad Aslam Butt came to the house of the complainant for Falefia Khawni but he did not help him in this case. He denied the defence suggestion that Abdul Sattar and Amanullah Burqi had contested the elections from his Muhallah and father of Ejaz accused was supporter of Amanullah Burqi and the complainant was supporter of Abdul Sattar. He further denied that the instance of said Abdul Sattar Councillor he falsely involved Ejaz accused in this case. Thus from the record no election rivalary is established between the complainant Asghar AH and the accused party. Even the complainant supported one councillor Abdul Sattar in b' D. election while the father of Ejaz accused supported another councillor Amanullah Burki this would not materially effect the result of the present occurrence. As indicated above the question is whether Mst. Nasreen deceased received injuries at the time and place and the manner alleged by the prosecution and if so who caused those injuries whether the present accused person or someone else. There is nothing on the record 10 show that hist. Nasreen was inflicted injuries by some other accused persons who have been let offandt the present accused persons have been substituted for the real assailants. Keeping in view the normal human nature and conduct neither Nasreen deceased nor her father Asghar All (P. W.) would have any sympathy with her murderer and allow him to go scot-free. In our society the net of accused persons can be enlarged and even some innocent person can also be implicated but the real assailant is not let off 'unless there is some settlement with him, which is not even suggested in the present case. We therefore, feel no hesitation to reject the defence plea. 23. Afrer taking into consideration the facts and circumstances of the case and the arguments of the counsel for the parties we have reached the conclusion that the prosecution has proved the guilt of both the appellants beyond any reasonable doubt and they have been rightly convicted and sentenced by the trial Court. We also maintain their convictions and sentences and conQrm the sentence of death awar­ ded to Muhammad Abbas. Consequently these appeals fail and the same are hereby dismissed. (TQM) Appeals dismissed.

P L J 1983 FSC 276 P L J 1983 FSC 276 (Original Jurisdiction) Present : aftab hussain, C.J., ali hussain qazilbash, ch. muhammad SiDDiQ & malik ghulam ali, JJ In re: Islamisation of Laws Public Notice No. 3/1983, heard on 19-12-1982. (i) United Nations (Security Council) Act (XIV of 1948)—

Provisions containing covenan 1 • of United Nations—Repugnancy 10 Injunctions of Islam— Held: Implementation and fulfilment of covenants and treaties with thcr nations having been greatly empha­ sised, covenant entered between nations and nations on basis of equality to be accorded sanctity according to injunctions of Quran and Sunnah— Held further : Basis of covenants of United Nations being equality as well as reciprocity, laws containing such covenants not to be held repugnant to Shariah —Constitution of Pakistan 1973 — Art. 203-D, [P. 279] A. B & C Holy Quran (Verses 5 : 1 ; X : 55 ; 9 : 1 ; 9 : 4 ; 9: 10 & 9: 1 2) Mtshkat-ul- Masabih (Vol. II : Hadilh Nos. 140;133;134& 135) Muslim Conduct of State by Dr. Hamidullah (pages 14, 59 to 62) rel. (if) United Nations (Declaration of Death of Missing Persons) Act (VII of 1956)—

Mafqood persons—Declaration of death after rive years—Law enacted in 1956 for declaration of death of persons disappearing in 1939—45 under circumstances affording reasonable grounds for infe­ rence regarding such persons having died in consequence of events of war or of racial, religious, political or national persecution— Held; Law having been enacted after 11 years of contingency contemplated in it, period of 5 years fixed (for declaration of death of missing persons) not to he against Shariah— Constitution of Pakistan, 1973— Art. 203-D. [P. 283] D Fathul Qadeer (Vol. V. pp. 368 to 375); Raddul Mukhtar (Vol. Ill, P. 362); Al Mughni (Vol. IV, P. 321) & Mohammadan Law by Syed Amir AH (Vol. II, P. 88) ref. liii) Diplomatic Immunities (Commonwealth Countries Representatires) Act (XXIX of 1957)--

Diplomatic immunities—Grant of— Held: Grant of immunities to diplomatic representatives to be incumbent in Shartah —Constitu­tion of Pakistan, 1973—Art. [P. ?85] E Zadud Maad by Ibn-e-Qayyim (Vol. Ill, p. 29) ; Seerat-e-Ibn-e- //fc/Mim (Vol. IV, p. 273) ; Seerat-e-Habiba (Vol. II, p. 235): Al- Khasaisul Kubra (Vol.11, 23); Al-Mabsut (Vol. X, p. 92) & Muslim Conduct of Slate by Dr. Hamidullah (pp. 291—295) ref (iv) Constitution of Pakistan , 1973—

Art. 172(2)—Lands and mines—Principle of Khums —Applicability of— Held: All lands, mineral and other things of value within con­ tinental shelf or underlying ocean within territorial waters of Pakistan being vesting in Federal Government, principle of Khums applicable to private mines in Sharia to have no applicability. {P. 286} G (») West Pakistan Vagrancy Ordinance (XX of 1958)—

Provisions of—Injunctions of Islam—Repugnancy to— Held: Begging by itself having not been approved in Islam except in case of stress and dire necessity, provisions of Ordinance (XX of 1958) not countenancing begging by use of fraudulent means to fulfil injunctions of Islam—Constitution of Pakistan, 1973—Art. 203-D. [P. 289] If Jami-ul-Uso0l by Ibne Aseer (Vol. X, Pp. 533 to 541) ref. sfi) Karachi Essential Articles (Price Control & Anti-Hoarding) Act (XXVII of 1953)—

Basic necessities of life—Control of prices of—Injunctions of Islanv— Repungancy to— Held: Imposition of price control though not justifiable in case of market being regulated by ethical norms and routine impact of supply and demand, Government to be duty bound to control price of basic necessities of life in case of increase in prices due to effect of hoarding, monopoly and illegal and unethical trade practices—Constitution of Pakistan, 1973—Art 203-D. [Pp. 294&296]J&K Miskkat (Vol. II, pp. 291 & 292); Kanzul Vmmel (Vol. HI Hadith 4631); Islam-ka-Nazaria-e-Mllkiat (Vol. II, pp. 187-189); Majmuul Fatwa (Vol. XXVIII, pp. 88 & 89) ; Al-Turuqul Hukmlyya (pp. 254-258) & Al Ashbah Wah Nazair Ibne Nujatm (p. 87) ref. (Til) Constitution of Pakistan , 1973—

Art, 203-D—Laws regulatory in nature—Repugnancy to Injunctions of Islam— Held; Protection of Ports (Special Measures) Act (XVII of 1948); Diplomatic & Consuler Officers (Oaths & Fees) Act (XXI of 1948); Regulations of Mines & Oil-Fields & Mineral Development (Government Control) Act (XXIV of 1948); Development of Industries (Government Control) Act (XIII of 1949) ; Merchant Shipping (National Colours) Act (V of 1950) ; Pakistan Navy (Exten­ sion of Service) Act (XXIV of 1950); Pakistan Currency Act (XXIX of 1950) ; Pakistan (Army & Air Force) Reserves Act (XLVIl of 1950); Pakistan Territorial Force Act (L of 1950): Karachi Hotel & Lodging Houses Control Act (LXV of 1950) ; Pakistan Hotels & Restaurants Act (LXXXI of 1976) ; Pakistan Citizenship Act (II of 1951) ; West Pakistan Cattle Slaughter (Control) Act (III of 1963) ; Pakistan Nursing Council Act (XXVI of 1973); Employment (Reward of Services) Act (XIX of 1952) ; Sind Crimes Control Act (IV of 1975) ; Civil Defence Act (XXXI of 1952), Pakistan (Control of Entry) Act (LV of 1952); Pakistan Essential Services (Maintenance) Act (LUI of 1952) ; Cantonments (Requisitioning of Immovable Property Ordinance (IV of 1948); Karachi Electricity Control Act (LVII of 1952); Essential Personnel (Registration) Ordinance (X of 1948); Sind Text^e Board Ordinance (X of 1949); Dangerous Cargoes Act (V of 195J) ; Charitable Funds (Regulation of Collections) Act (XXXI of 1953); Pakistan Commissions of Inquiry Act (VI of 1956) ; Pakistan International Airlines Corporation Act (XIX of 1956) ; Pakistan Names & Emblems (Prevention of Unauthorised Use) Act (XXVIII of 1957) ; Cotton Act (XXXVIII of 1957) & Pakistan Junior Cadet Corps Act (XXXVI of 1953), being laws merely regulatory in character to be not repugnant in any way to Holy Quran and Sunnah. [P. 285 ] F et seq. Mr. Iftikhar Hussain Chaudhry, Standing Counsel for the Federal Government. Dates of hearing : 11/12/13/14/15/18/19-12-1982. order Aftab Hussain, C. J.—A public notice was issued and published in various important Newspapers in the country in the last week of November, i982 inviting comments whether any of the laws published therein from Vol. 11 and 12 of the Pakistan Code was repugnant to the Holy Quran and the Sunnah. No comments were received. We have carefully gone through those statutes. THE UNITED NATIONS (SECURITY COUNCIL) ACT, 1948 ACT NO. XIV OF 194« The Act of 1948 was enforced to enable, effect to be given and measures to be taken under Article 41 of the Charter of the United Nations. Islam has laid great emphasis on implementation and fulfilment of. covenants and treaties with other nations. Reference in this connection! may be made to the following verses of the Holy Quran :— 5:1 "O ye who believe ! Fulfil (all) Covenants." 8 : 55 "They are those with whom Thou didst make a covenant. But they break their covenant Every time and they have not The fear (of Allah)." 9:1 "Quittance is this from Allah and His apostle unto the associaton with whom ye had covenanted." 9:4 "(But the treaties are) not dissolved." With those Pagans with whom ye have entered into alliance And who have not subsequently Failed you in aught, Nor aided anyone against you. So fulfil your engagements With them to the end Of their term: for Allah Loveth the righteous." 9:10 "In a Believer they respect not ' The ties either of kinship Or of covenant ! It is they Who have transgressed all bounds." 9:12 "But if they violate their oaths After their covenant, And taunt you for your Faith Fight ye the chiefs of Unfaith : For their oaths are nothing to them ; Thus they may be restrained." Reference Prophet :— may also be made to the following traditions of the Hol 1. It is related from Safwan bin-e-Solaim that the Holy Prophet said : "Behold! him who oppresses a covenanted man, or causes some damage to him, or involves him in such hardship as is beyond endurance, or takes something from him without his wilful consent, I shall be his disputant on the Resurrection Day. (See Mlshkai-ul- Masabih, Vol. II, translated by Al-Haj Maulana Fazal-ul-Karim, page 404, Haditb No. 140)." 2. "Solaim-b-A'mer reported that there wa a treaty between Muawayiah and the Romans. He used to travel towards their lands, and when the covenant was broken, he attacked them. A man came riding on an Arab horse (or a Turkish horse) and said: Allah is greatest: Fidelity and no treachery. He was Amr-b-Abasah. Muawayiah asked him about it. He said : I heard the Messenger of Allah say : whoso has a treaty between him and a people must neither oppose it nor make it tight (Aii^j) (meaning that he would not act in a manner that the other party may be compelled to break it) till its term expires or you have to act on equal footing in case the covenant is broken by the other party. Muawayiah then returned with the people." (See, ibid, Hadith No. 133, P. 397). 3. Abu Rafae reported : The Quresh sent me to the Apostle of Allah. No sooner did I see the Prophet the truthfulness of Islam gripped my heart. I said : O Messenger of Allah ! by Allah, I shall not return to them (the Quresh). He said : Verily I do neither break a treaty, nor do I imprison an Ambassador. So return, if there persists in you what is now in your heart, come back. Then I returned and came to the Prophet later and accepted Islam. (Ibid. Hadith No. 134, page 398). 4. Amr-b-Shuaib reported from his father who heard from his grand­ father that the Messenger of Allah said in his sermon : Fulfil your covenants of the days of ignorance, because it (i.e. Islam) does not add to it but firmness and do not renew a covenant in Islam. (See ibid, Hadith No. 135, page 398). One of the conditions of the Treaty of Hudaibiyya was that any person going to the Holy Prophet from among the Meccans would have to be restored to them even if he was a Muslim. Keeping in view the circums­ tances of the era the condition looked humiliating. But the treaty is hailed by the Quran as open victory for its effects. However, the Holy prophet exhibited so much meticulousness to the fulfilment of that treaty that when Abu Baseer a Muslim in the custody of the Quresh came to him, the Holy Prophet did not allow him to remain amongst the Muslims and returned him to the two persons who had been sent to search him and bring him back. In the way, Abu Baseer, somehow, killed one of the two persons while the other one escaped. Abu Baseer came back to (he Holy Prophet but he admonished him and addressed him as 'O kindler of war' and observed if there had been some body to take him (10 the Quresh) he would have handed him over to him for being taken to the Quresh. Abu Baseer then left Madina(see Mishkat-ul-Masablh Vol. II, page 401). Several principles can be inferred from these verses and the traditions. It is one of the duties of the Muslims thai they shall fulfil their covenants and shall never break them. If the covenant be for some period it shall be fulfilled till the period so fixed expires or till the other party breaks it. The sanctity of (he covenant is thus guaranteed in Islam. Dr. Hamidullah sums up this topic in the Muslim Conduct of State, paras 1 4. 59-62 : — ( Para 14). "Besides the laws and customs of the land, treaties between two or more States create obligations. The distinct kind of addition to the fabric of the law is tolerated, for shorter or longer periods, in the interest of the State. The classical Treaty of Hudaibiyya provides us with a precedent of terms even improper in themselves being capable of acceptance with a broader view of the utlimate good of the community. ( Para 59}. Another important source of international law com­ prises treaties. Sometimes they (treaties) are bilateral and some­ times multilateral, and obviously they bind only the parties thereto. We shall deal with them in detail later, but it may be pointed out here that there are no precedents in Islamic history of all the States of the world adhering to a treaty, and the reason is • not far to seek. Communication and economic interdependence, as also restrictions on foreigners, were not so far developed in those days. ( Para 60) In connection with treaties, it must be recognised once for all that there are cenain rules in Muslim law which are mperatively compulsory and for ever (^S-^l j •S^). These cannot lose their binding force except when, and so long as, one is in extreme stress and unavoidable necessity (j'j^'). "Except one who is driven by necessity, neither craving nor transgressing, it is no sin for him" is the oft-repeated Quranic provision. And hence the maxim (o!j,k»»J! -J oljjj^JI) (stress renders the forbidden permissible). Again there are rules in Muslim law which are not compulsory, yet their execution is praise-worthy (k_«»»:«-0. Thirdly, there are those whose performance or omission is left to the discretion of individual persons Para 61). It is regarding only this last category of acts that custom and treaty impositions are upheld and rendered valid by Muslim law. And, as explained above, treaties concluded under stress against the injunctions of Muslim religious law (o-) are binding only so long as the necessity remains. Rules regarding the repudiation of treaties will be discussed in subsequent chapter. (Para. 62). It is to be noted that treaties are sometimes wholh and deliberately law-making between the parlies concerned : on other occasions they refer incidentally to legislation in an inter­ national sense." Thus a covenant entered into between nations and nations on thels | basis of equality must be accorded the sanctity to which covenants are | entitled according to the injunctions of the Quran and the Sunnah. The basis of the covenants of the United Nations is equality as well as reciprocity. Such covenants are, therefore, entitled to the highest respect and sanctity in Islam. For these reasons the laws containing the covenants of United Nations including the above law cannot be held to be repugnant to Shariah. THE UNITED NATIONS (PRIVILEGES AND IMMUNITIES ACT, 1948 ACT NO. XX OF 1948 The Act of 1948 is based upon Conventions and the Privileges and Immunities of the United Nations which was adopted by the General Assembly of the United Nations on the 13th day of February, 1964, and has been given force of law in Pakistan . On the grounds given above, this is in the nature of a treaty. THE PAKISTAN (EXCHANGE OF PRISONERS) ORDINANCE, 1948 ORDINANCE NO. XII OF 1948 This Ordinance is to implement an agreement with India regarding the exchange of certain classes of prisoners between Pakistan and India . THE UNITED NATIONS (DECLARATION OF DAETH OF MISSING PERSONS) ACT, 1956 ACT NO. VII OF !956 The Act of 1956 was enacted to give effect to the United Nations' Convention on the Declaration of Death of Missing Persons whose last residence was in Europe, Asia or Africa and who disappeared in the years 1939-45 under circumstances affording reasonable grounds to infer that they had died in consequence of events of war or of racial, religious, political or national persecution. The Convention set out in the schedule to the Act was thus given force of law in Pakistan . In Arricle 3, sub-Article (iv), it is stated that a Competent tribunal in each Contracting State will issue a declaration of death of a missing person provided fnter-alia that a period of atleast five (5) years has elapsed since the last known date on which the missing person was probably alive, as indicated by the reception of news or the occurrence of any other fact before the tribunal. No Shartah objection can be taken to the period of five (5) years. Missing person is called Mafqood (j->) in Islamic Fiqh. The expres­ sion is defined as a person regarding whom it is not known whether he is dead or alive. There is difference of opinion among the juiists when a Mafqood can be presumed and declared to have died. There are several views of Hanafi jurists on this point. According to one view he will be declared dead when he might have reached the age of 90 years. Another view reduces the period to 70 years while a third one further reduces i' to 60 years. The recognised rule however, is stated by Ibn-e-Humam that it is for the Judge to give any direction in regard to death in the circumstances of any particular case. (See Fathul Qadeer, Vol. V pages 358 to 375). According to Imam Malik the wife of a missing person is allowed to observe iddat of death on the expiration of four years from the date of his isappearance and to re-marry which clearly show that the death of the missing person would be presumed after the lapse of four years. (See Raddul Mukhtar, Vol. HI, page 362). The opinion of Imam Ahmad is thai when there is strong ground for presumption of the death of the missing person like a man who is missing from the rank of two fighting bodies or from the ship which is wrecked, his property will be divided among his heirs after four years from the date of his disappearance, but if there be no such ground for presumption as in the case of a man who has gone on a journey on business and has not been heard of, the probability of missing person's death may be referred to the Judge who may declare his death having regard to the circumstances of each particular case. (See Al Mughnt by Ibn-e-Quddama, Vol. IV, page 321). Among the Shiahs the lapse of 10 years gives rise to the presumption of death of a missing person. Imam Shafei recognised a period of seven years for raising such presumption. (See Muhammadan Law, Vol. II, page 88 by Syed Ameer AH). It is clear from these different opinions that the normal period as fixed by Imam Malik and also by Imam Ahmad is 4 years. The period of five (5) years cannot, therefore, be said to be against Shariah. However, this D is not very relevant since the law was enacted in 1956 for declaration of .death of persons missing since 1939-1945. The law was thus enacted aftei eleven years of the contingency contemplated in it. THE DIPLOMATIC IMMUNITIES (COMMONWEALTH COUNTRIES REPRESENTATIVES) ACT, 1957 ACT NO. XXIX OF 1957 The Act of 1957 declares and confers certain immunities upon repre­ sentatives in Pakistan of Commonwealth Countries and on certain other personj who are connected as member of staff or member of families of the Representatives. There are several traditions in regard to the treatment to be accorded to Representatives of another nation or government. A delegation was led by Aamir bin-e-Tufail who on his visit to the Holy Prophet adopted an un-reasonable attitude and talked to the Holy Prophet in a harsh tone. While returning the delegation administered a threat that they would attack Madina and annihilate it. Despite such misbehaviour and threat, the Holy Prophet was extremely polite to them and saw them off like other diplomatic representatives with great honour and respect (Zadul Maad by Ibn-e-Qayyim, Vol , HI , page 29). Once Musailama Kazzab sent his representatives to the Holy Prophet. These representatives made painful suggestions which were absolutely contrary to the tents and injunctions oflslam. The Holy Prophet however saw them off with great honour and only said that if the murder of the representatives was permitted he would have killed them, (Seerai-e-lbn-Hisham, Vol. IV, page 273). The Christians of Najran sent a delegation 10 the Holy Prophet which consisted of 60 men. They were out up and accommodated in the Ma&jide-Nabwi (Mosque) and inspiie of the opposition of his Companions the Holy Prophet allowed them to pray in Masjid-e-Nabwi according to their own tenets. Thev prayed in the mosque in iheir own way. (Seerat-e-Halbia, Vol. II, page 235). A delegation of Banu Thaqif came to Madma from Taaif. The Holy Prophet received them with great honour and arranged tents for their stay in Masjid-e-Nabwi (mosque). He ordered Khalid Ibn-e-Waleed to look after comfort and show hospitality to them as honoured guests. (See ibid Vol. Ill , pages 243-244). Sometimes the Holy Prophet also gave such representatives financial aid. Once the delegation of Muzama tribe came to the Holy Prophet. They had no money for meeting the expenses ot their return journey. The Holy Prophet ordered Hazrai Umar to provide them all what was needed for this purpose. (AI-Khasaisul Kubra, Vol. II, page 23). It is established from these traditions that the Holy Prophet did not allow any representative to be maltreated ; rather he showed them greatest honour and respect and granted immunities to them inter-alia from impri­ sonment and death, however, hostile was their behaviour and threatening their language. Dr. Hamidullah sums up these immunities in the Muslim Conduct of State, paras 291-295. The relevant portion is as follows :— (291). Envoys, alongwith those who are in their company, enjoy full personal immunity, they must never be killed nor be in any way molested or maltreated. Even if the envoy, or any of his company, is a criminal of the State to which he is sent he may not be treated otherwise than as an envoy ................................. (292). Envoys are accorded full freedom of prayer and religious rites (29:")). the property of the envoys is exempt from important duties in Muslim territory if reciprocated. So, ash-Shaibaniy says, if the foreign Stales exempt Muslim envoys from customs duties and other taxes, the envoys of such States will enjoy the same pri­ vileges in Muslim territoiy : otherwise they may, if the Muslim State so desire, be required 10 pay ordinary dues like foreign visitors. si says in Al Mabsut (Vol. 10, page 92) that if somebody claims to be an envoy ar.d has in his possession the necessary credentials he shall be granted immunity till the completion of his ambassadorial duly and till return. Th's is based on the rule that envoys were always given protection during the day. 1 - of ignorance as well as Islam. Without such immunity they cannot satisfactorily perform their functions. The grant of immunities to diplomatic representatives is, therefore,|£ - incumbent in Shariah. THE TRANSFER OF EVACUEE DEPOSITS ACT, 1956 ACT No. XLV OF 1956 This Act provides reciprocal transfer from Pakistan to India and from India to Pakistan of certain deposits belonging to refugees and matters connected therewith. The following laws which are merely regulatory in character are not//? repugnant in any way to the Holy Quran and Sunnah :— THE PROTECTION OF PORTS (SPECIAL MEASURES) ACT, 1948 ACT No. XVII OF 1948 This Act regulates the special measures to ensure the protection of ports. THE DIPLOMATIC AND CONSULAR OFFICERS (OATHS AND FEES) ACT, 1948 ACT No. XXI OF 1948 This Act provides for the administration of oaths by diplomatic and consular officers of Pakistan exercising functions in foreign countries or by any diplomatic or consular officer of a foreign country authorised in writing by the Federal Government and for the levy of fee in respect of certain official duties performed by them. THE REGULATION OF MINES AND OIL-FIELD AND MINERAL DEVELOPMENT (GOVERNMENT CONTROL) ACT XXIV OF 1948 The Act provides for certain matters connected with the regulation of mines and oil-fields and mineral development under Government control. Section 2 authorises the Government to frame rules providing for all or any of the following matters namely :— (1) the manner in which, and the authority to whom, application for the grant or renewal of an exploration or prospecting licence, a mining lease or other mining concession shall be made, and the prescribing of the fees to be paid on such application ; (2) the conditions in accordance with which the grant or renewal of an exploration or prospecting licence, a mining lease or other mining concession may be made, and the prescribing of forms for the execution or renewal of such licence, lease and concession ; (3) the circumstances under which renewal of a licence, lease or con­ cession as aforesaid may be refused or any such licence, lease or concession whether granted or renewed may be revoked ; (4) the determination of the rates at which, and ihe conditions subject to which, royalties, rents and taxes shall be paid by licensees, lessees and grantees of mining concessions ; (5) the refinement of ores and mineral oils; (6) the control of production, storage and distribution of minerals and mineral oils; (7) the fixation of the prices at which minerals and mineral oils may be bought or sold ; and (8) any matter ancillary or incidental to the matters set out in the foregoing clauses of this section. It may be clarified that by virtue of Article 172(2) of the Constitution all lands, mineral and other things of value within the continental shelf or underlying the ocean within the territorial waters of Pakistan shall vest in the Federal Government. The principle of Khums. which is applicable to private mines in Sharia is therefore not applicable to lands and mines in Pakistan . There is no repugnancy in this Statute with the Holy Quran or the Sunnah. THE DEVELOPMENT OF INDUSTRIES (GOVERNMENT CONTROL) ACT, 1949 ACT No. XIII OF 1949 It empowers the Government to declare that ihe development under Government control of industries specified in the schedule to the Act is expedient, in the public interest and in pursuance of such declaration authorises the government to regulate the setting up of any new under­ taking or the development of any new or existing undertaking. THE MERCHANT SHIPPING (NATIONAL COLOURS) ACT, 1949 ACT NO. V OF 1950 This Act provides for national colours for ships registered in, or owned by persons domiciled in, or bodies corporate established in Pakistan . THE PAKISTAN NAVY (EXTENSION OF SERVICE) ACT, 1950 ACT NO. XXIV OF 1950 This Act provides for the retention in service of certain persons enrol­led for service in the Pakistan Navy. THE PAKISTAN CURRENCY ACT, 1950 ACT NO. XXIX OF 1950 It provides for the issue and putting into circulation of Government of Pakistan one-rupee notes. THE PAKISTAN (ARMY AND AIR FORCE) RESERVES ACT, 1950 ACT NO. XLVII OF 1950 It provides for the constitution and discipline of the Pakistan Army and Air Force Reserves. THE PAKISTAN TERRITORIAL FORCE ACT, 1950. ACT NO. L OF 1950. The Act constitutes a Pakistan Territorial Force. Section 13 provides that Pakistan Territorial Force when doing duty as such officer, shall be subject to Army Act, which is under consideration. THE KARACHI HOTELS AND LODGING-HOUSES (CONTROL) ACT, 1950. ACT NO. LXVOF 1950 THE PAKISTAN HOTELS AND RESTAURANTS. ACT LXXXI OF 1976. Both these Acts provide for special measures for registration of ln\er~alla hotels, control of rates which are chargeable in places to which the particular Act applies, and for the reservation of accommodation therein. For this purpose they provide for :— : (a) appointments of Controller and Additional Controllers ; (A) registration of hotels and lodging houses and restaurants; (c) their classification ; (d) determination of fair rates of accoummodation; («) the fixation of limits of persons to be accommodation in any room; (/) the reservation of accommodation at the instance of the Controller; (g) conditions applicable to eviction of existing guests ; (A) powers of Controller ; and (i) manner of summary evictions etc. » Such legislation are inter-alia necessary for the increase in the tourist trade which may be an important source of foreign exchange earning for the country. THE VAGRANCY ( KARACHI DIVISION) ACT, 1950. ACT NO. LXXIV OF 1950. There was another Vagrancy Act of 1947 for Sind which was known as the Sind Vagrancy Act, 1947. The Sind Act was repealed in 1958 by the West Pakistan Vagrancy Ordinance, 1958 which was extended to Karachi by the West Pakistan (Extension to Karachi ) Ordinance VII of 1964. The Ordinance was made applicable to the Province of West Pakistan except the Federal Capital and the Special Areas. It was not thus applicable to Karachi which at ibat time was the Federal Capiral. It was however, A- extended to Karachi Division too by the West Pakistan Laws (Extension to Karachi) Ordinance VII of 1964 (Item 15 of the Schedule). The prevai- Jent statute now is West Pakistan Vagrancy Ordinance VII of 1958 which has been examined. THE WEST PAKISTAN VAGRANCY ORDINANCE XX OF 1958. This Ordinance was promulgated to deal with Vagrancy in West Pakistan . The word 'vagrant' is defined as meaning a person of any age of either sex who : — (o) solicits or receives alms in public place : (A) exposes or exhibits with the object of obtaining alms any sore, wound, injury, deformity or disease in a public place for the pur­ pose of soliciting or receiving alms ; (c) allows himself to be used as an exhibit for the purpose of soliciting or receiving alms ; (d) enters on any private premises without the initiation of the occupier for the purpose of soliciting or receiving alms ; but does not include a person who solicits or receives money, food or gifts for a purpose authorised by rules under a prescribed certificate. It provides for the veiting up of Welfare Homes in the charge of Manager whose duties are specified in S. 5. S. 6 authorises voluntary admission of an old, infirm or disabled person or a child who has no source of livelihood, in the welfare homes with the permission of the District Magistrate. S. 9 provides for sentence of vagrancy while S. 10 provides for punishment for employing or causing persons to ask for alms. The Ordinance provides for the procedure of trial S 14 provides that a vagrant shall remain in custody or serve his imprisonment for the above"^ offences in a welfare home. Provisions are also added for his release op probation (S. 16) and discharge from welfare homes (s.17). The following classes of persons other in the welfare home (S. 5) : — must be kept separately from each (a) children (b) females (c) lepers or persons suffering from contagious diseases, (d) lunatics (e) infirm, old or incapacitated (f) able bodied. The Manager shall arrange : — (a) for the education of the children detained in the welfare home ; (b) for such instruction of the vagrants as may rehabilitate them in useful trades and make them self supporting. Begging is not approved or encouraged in Islam. There are several traditions of the Holy Prophet in which it has been decried as well as scorned. These traditions are collected in Jami-ul-Usool by Ibne Aseer, Vol. 10, pages 533 to 541 . Some of them are reproduced below : — In order to discourage begging the Holy Prophet said : "Upper hand is better than lower hand". It has been related on the authority of Auf Bin-e-Malik that the Prophet used to take promise of fealty (baiat) from us on certain things including this that we will not beg. beg anything from people) He said don't In another tradition the Prophet said that it is better for a person to take bis rope and go out and fetch wood to sell rather than beg from the people, who may give him charity or decline to give. In this manner Allah will establish his respect. In yet another tradition the Prophet is said to have observed : "He who despite being rich begs will come on the Day of Judgment in such a condition that bis face will be full of injuries. Someone enquired "Oh Prophet ! what is the standard of richness". The Prophet said "to own 50 dtrhams". The Prophet said. "He who begs despite being possessed of means, collects fire for him." The companions enquired "Oh Prophet! what is being possessed of means". . The Prophet answered "That which is sufficient for his day's food (Lunch and dinner)." It has been related on the authority of Anas that a man from Ansar came to the Prophet and begged. The Prophet asked him whether he had something at his home. He answered that he had a sheet of cloth for wearing and covering the place for sleeping and a cup for drinking water. The Prophet ordered him to bring these two things. When he brought them, the Prophet asked "who wants to purchase them", A person said, "I want to purchase them for one dirham". The Prophet then asked : "Is there anyone willing to pay more than one dirham". A person offered to pay two dtrhams for them. The Prophet sold them for two dtrhams and gave the price to the Ansari and directed him to purchase food for one dirham for his family and an axe with the other dirham, When he brought it (axe) the Prophet fixed the handle in it. He then asked him to go and cut wood with it, sell it, and return after a fortnight. He began to cut wood and sell it. He came to the Prophet after expiry of the period fixed by him and informed him that he bad ten dirhams with him though he had also purchased some cloth and food for some dirhams. The Prophet said. "It is better for you than if you had begged and you had been shame faced on the Day of Judgment". Begging is only allowed for three persons, firstly one who is in poverty, secondly, one who has borne a grea f loss and thirdly one who bad to pay a high amount in diyat («^>) (Abu Dowood). If the begging itself is not approved except in the case of stress andl dire necessity, the begging by use of fraudulent means cannot be counte-j// nanced by Islam. The Act thus fulfils the injunctions of the Holy Prophet.! THE PAKISTAN CITIZENSHIP ACT, 1951 ACT NO II OF 1951 This Act makes provision for and regulates citizenship ot Pakistan . THE KARACHI CATTLES SLAUGHTER CONTROL ACT, 1950 ACT NO. LXVIOF 1950 THE WEST PAKISTAN CATTLE SLAUGHTER (CONTROL) ACT III OF 1963. This Act was repealed by West Pakistan Act 111 oi of 1963. We have gone through the West Pakistan Act. It only regulates the slaughter of cattle, The vires of Karachi Cattle Slaughter Control Act, 1950 were challenged in S. P No. 39 of 1979-Karachi. It was urged that the provisions fixing the minimum age of the cattle for slaughter was against Sharia. It was held (hat the provision was not against the Holy Quran and Sunnah and was in the public interest. THE PAKISTAN NURSING COUNCIL ACT LIX OF 1952 This Act was repealed by Pakistan Nursing Council Act XXV of 1973 which has been examined. THE PAKISTAN NURSING COUNCIL ACT XXVI OF 1973 This Act was examined in substitution of Pakistan Nursing Council Act, 19S2 which was repealed by the above Act. It aims at only setting up of Nursing Council in order to establish tne uniform standard of train­ ing for nurses, tnidwives and health visitors. THE EMPLOYMENT (RECORD OF SERVICES) ACT, 1952 ACT NO XIX OF 1952 This Act makes provisions for the compulsory maintenance of the record of service of persons in certain classes of employment in certain areas. THE KARACHI CONTROL OF DISORDERLY PERSONS ACT, 1952 (ACT NO. XXIX OF 1952) This Act was repealed by the West Pakistan Control of Goondas (Amendment) Ordinance, 1968 (Ord. XI of 1968) and the West Pakistan Control of Goondas Ordinance 1959, was made applicable to the whole of West Pakistan . Later in 1975, Sind Crime Control Act, (Sind Act IV of 1975) repealed the West Pakistan Control of Goondas Ordinance, 1959, in its application to the Province of Sind . THE SIND CRIMES CONTROL ACT IV OF 1975 We have examined Sind Act IV of 1975 and we found no provision in it which may be said to be repugnant'to the Quran and the Sunnah. THE CIVIL DEFENCE ACT, 1952 ACT NO. XXXI OF 1952 This Act is for constitution of forces to be called the Pakistan Armed Forces Nursing Service and to provide for its discipline. It makes appli­ cable the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961 to such extent and subject to such adapta­ tion and modification as may be prescribed, to the officers of the respec­ tive services in the Pakistan Armed Forces Nursing Service. THE PAKISTAN (CONTROL OF ENTRY) ACT, 1952 ACT NO. LV OF 1952 The Act is to make better provision for controlling the entry of Indian citizens into Pakistan . THE PAKISTAN ESSENTIAL SERVICES (MAINTENANCE) ACT, 1952 ACT NO. LIU OF 1952 The Act makes provision for the maintenance of certain essential services i.e. every employment under the Federal Government and the employment or class of employment declared by notification by the Government as an employment or class of employment to which this Act applies. Such notification can be made only In respect of employment or class of employment which is essential for securing the defence or the I security of Pakistan or any part thereof, or for the maintenance of such supplies or services as relate to any of the matters with respect to which the Central Legislature has power to make laws and are essential to the life of the community, (S. 3). The period during which the declaration shall remain in force cannot exceed six months at a time S. 3 (3). It empowers the Government or the authorised officer to order persons engaged in certain employment to remain in specified area or -areas (S. 4). It also provides for regulation of wages and conditions of .service of such employees. THE CANTONMENTS (REQUISITIONING OF IMMOVABLE PROPERTY) ORDINANCE, 1948 ORDINANCE NO. IV OF 1948 It provides on account of emergency for requisitiong of immovable .property within the limits of Cantonments for purposes other than that of the Cantonment Boards. Its Section 4 provides for assessment of com­pensation. According to it the compensation can be fixed by agreement but if no agreement is reached the Federal Government under the roles framed by it may fix a reasonable amount of compensation and such fixation shall 'be final. The following rules were made by Gazette Notification No. 671/49 dated 12th August, 1949 :— 1. The compensation determinable under these Rules shall be com­ pensation by way of rent. 2. (i) The compensation shall, if possible, be determined by agree­ ment between the owner of the immovable property and the Military Estates Officer. •<(ii) Where no such agreement is reached within a reasonable time compensation shall be the rent of the house on the basis of which the annual value of the house is assessed for purposes of taxation in the assessment list prepared by the Cantonment Board concerned under Section 66 of the Cantonments Act, 1924 (II of 1924) 3. The owner of the house shall be liable for repairs to the house to keep it in a habitable condition, and in bis default the Military Estates Officer may do the repairs and deduct the cost thereof from the rent, provided that such deduction shall not in any one year exceed a sum equivalent to three months rent as determ­ ined by these Rules, 4. The term 'house' in these Rules means a building or a part of building let wholly or partiaily for residential purposes and includes:— (i) Any garden, grounds and outhouse appurtemant to such building or part of a building, and (If) Any furniture supplied by the landlord for use in such building or part of a building. Rule 2 (ii) provides for fixation of compensation according to the value of the assessment list of the Cantonment Board. There is logic behind this rule. It often happens that existing rental value of the property is often more than shown in the assessment register for the purpose of taxation. The rule aims at dlscourging the tendency to avoid paying full tax by concealment of rent received for the property. It will be in the interest of the owners themselves to keep the value as high in the register as corresoonds with the rate of rent recovered by the owners arid to pay tax thereon so that they may get due compensation in case of requisition of their properties. THE KARACHI ELECTRICITY CONTROL ACT, 1952 ACT NO. LVHOF1952 It provides for the continuance of powers to control the production, distribution, use and consumption of elecrtical energy. THE ESSENTIAL PERSONNEL (REGISTRATION) ORDINANCE, 1948 ORDINANCE NO. X OF 1948 The Aqt is to provide for the compulsory registration of Essential Personnel at Employment Exchanges. THE SIND TEXTILE BOARD ORDINANCE, 1949 ORDINANCE NO. X OF 1949 The Ordinance incorporates the Sind Textile Board and regulates its, working. THE DANGEROUS CARGOES ACT, 1953 ACT NO. V OF 1953 The Act makes further provision for the safety of ports in respect of - the transit, working and storage of dangerous cargoes and matters incid­ ental thereto. THE CHARITABLE FUNDS (REGULATION OF COLLECTIONS) ACT, 1953 ACT NO. XXXI OF 1953 The Act provides for the regulation, administration and accounting of collections of charitable donations and for the prevention of frauds in that respect. THE PAKISTAN COMMISSION OF INQUIRY ACT, 1959 ACT NO. VI OF 1956 This Act provides for the appointment of Commissions of Inquiry for the purpose of making an inquiry into any definite matter of public import­ ance and performing such functions and within such time as may be specified in the notification. It deals with the power and procedure of the Com­ mission. THE PAKISTAN INTERNATIONAL AIRLINES CORPORATION ACT, 1956 ACT NO. XIX. OF 1956 The Act provides for the establishment of a Corporation to facilitate acquisition of the air-transport undertaking of the Orient Airways Limited, and to make further and better provision for the operation and development .of air-transport services and purposes connected therewith. THE PAKISTAN NAMES AND EMBLEMS (PREVENTION OF UNAUTHORISED USE) ACT, 1957 ACT NO. XXVIII of 1957 The Act provides for the prevention of unauthorised use of the follow ing names and emblems :— 1. The name, title or semblance of Quaid-i-Azam Jinnah and any variation thereof. 2. The Pakistan Sag. 3. The official seal, emblem, insignia or coat-of-arms of Government. 4. A seal, emblem or insignia used by any department of Govern­ ment. 5. The name emblem or official seal of :— (0 the United Nations Organization. (/i) (he World Health Organization. (Hi) The World Meteorological Organization. (iv) The Interational Civil Aviation Organization, (v) The International Atomic Energy Agency: It is valid. THE COTTON ACT, 1957 ACT NO. XXXVIII OF 1957 This Act provides measures for the promotion of international trade in cotton. THE PAKISTAN JUNIOR CADET CORPS ACT, 1953 ACT NO. XXXVI OF 1953. The Act is for constitution and maintenance of a Junior Cadet Corps for Pakistan and for its administration. THE KARACHI ESSENTIAL ARTICLES (PRICE CONTROL AND ANTI-HOARDING) ACT, .1953 ACT NO. XXXVII OF 1953 Islam does not allow price control in normal situation when the merchants sell their commodities at normal prices, since its economic policy is not to interfere with ihe routine functions of the enterprise and business. It is opposed to imposition of control for so long as the routine rule of supply and demand governs the market. In this connection reference may be made to the following Hadlth of the Holy Prophet : "Anas reported that in the time of the Prophet the current prices once rose high. The Companions submitted "O'Prophet of Allah, fix the rates for us", The Prophet relied : "Verily Allah is one who controls the price, curtails (supply) or makes ample provision and provides sustenance. Certainly I hope that I shall meet my Allah while there will be none amongst you who will hold me responsible either for blood or for property. Mishkat. Vol. II, page 291. In this connection there is another, iradition of the Holy Prophet which denotes the circumstances and background of ihe above request of the Companions for fixation of rates. It is as under :— "The people suffered in famine and said to the Holy Prophet : 'O Prophet fix rate for us". The Prophet replied, "No, Allah will ask me about an act which I impose on you to be done while He has not ordered me to do that. You only pray for the blessing of Allah". (Kanzul Ummal, Vol. Ill , Hadith No. 4631). From the above (second) Hadith it is quite clear that on account of famine the crop had failed and the articles of food were in short supply. If the prices had been controlled whatever supplies were available in or were attracted to the market from other places would have disappeared. Thus the people were likely to be more hard hit and would have been deprived of the most important basic necessities of life i.e. food. This would have brought starvation and more suffering. It also appears that the increase in the rates was due to a natural phenomenon and not due to unscrupulous devices of profit hungry businessmen. Imposition of price control in these circumstances would have been detrimental to the interest of business as well as the consumer. But the case would be different if the auses of increase in the price of commodities an artificial like creation of artificial scarcity, by the practice of hoarding and monopoly In siith circumstances price control would not be against the above Hadith (Islam- Ka-Nazria-e-Milkiat by Dr. Nijatulla Siddiqui, Vol. II page 187-189). Reference in this connection may also be made to the following traditions of the Holy Prophet wherein hoarding and monopoly have been strictly prohibited :— (j) Muamar reported that the Prophet said, "He who hoards mono­ polises thus a sinner." (Mishkat. Vol. II, page 291) (») Hazrat Utnar reported that the Prophet said, "Allah will inflict epidemics and bankruptcy on those who hoard (and keep away from) the Muslims their food-grain". (Mtshkai, Vol. II. p. 292). (///) Maaz reported that he heard the Prophet saying; -'Bad is he who hoards, if Allah makes commodities cheap be becomes aggrieved and if He makes ihem dear, he becomes pleased," (Mishkat, Vol. II, p. 292) Commenting on the above Ahadlth Imam Ibn-e-Taimiyya says, "that the monopolist is a person who purchases the food-grains which the people neqd and then hoards them so that their prices may rise. Such a person is a source of considerable suffering for the people and as such the Government is authorised to compel him to sell those commodities on normal prices, specially when they form their necessities. The jurists are united on this point. (Majmuual Fatawa, Vol. 28, page 88-89). The opinions differ on the various aspects of price control. This differ­ence is summed up by Ibn-e-Qayyam :— "The Ulema have differed on two aspects of price control. Firstly the prices may be generally high but despite this merchant sells his com­ modities on a still higher price which exceeds the normal prices. ',; According to Imam Malik, he will be restrained from doing so. Secon­ dly he may sell his merchandise on a price lower than the normal price. There are two views among the Malikison the ques­ tion whether he should be restrained from selling cheap. According to some follower of Imam Shafei and Imam Ahmad like Abu Askari, Qazi Abu Yala, Abu Jafer Sharif, Abu-ul-Khattab, Ibn-i-Akeel etc. no such restraint shall be Imposed upon him. Imam Malik bases his view on a tradition from Saeed bin Musyyab who said : once Hazrat Umar passed by Hatib bin-e-Baltaa who was selling dry grapes on rates other than the market rates. Hazrat Umar said to him. "Either you sell according to our market rates or you go out from our market". (Muwatta, Imam Malik). This view is also shared by Abul Waleed Baji and other who are of the opinion that the trader will be compelled to sell according to uniform market rates in either case whether he increases the price or decreases the same. But will the prices be fixed if the commodities are sold in normal rates ? According to the majority including Imam Malik it will not be fixed in such situation. But Abul Waleed Baji favours price control in this situation also. Ashhab relates from Imam Malik that he said : "The Inspector of markets will fix raes for Butchers like that of meat of goat, sheep and on which the but­ chers shall sell it but if they do not sell on that rate, they should be 'turned out of the market. Anyhow these rates will be fixed with the consultation of the merchants, consumers and other experts so tha t the rights of both the parties are safeguarded" (At-Turuqul Hukamiyya by Ibn-e-Qayyim, page 252-258). The prominent jurist Ibn-e-Nujaim has also allowed price control when merchants sell their commodities in a way which is detrimental to the interest of the needy. Discussing the shoria principle of removal of public harm be says that when the merchants sell their edibles for un­ reasonable prices there should be price control (to avoid harm to the public) (Al Ashbah wan Nazatr Ibn-e-Nujaim, page 87). Ibn-e-Taimlyya has also favoured price contorl when the merchants sell their commodities for un-reasonable and abnormal prices. He also favoured the view that the authorities concerned should fix the rates with, the consultation of the consumers, merchants and other experts by inviting them to a meeting in this respect and by attempting to secure their unani­ mity on the rates. This safeguards the rights of both the consumers and . merchants. (Majmuul Fatawa, Vol. 28, pages 88-89). We are not concerned with the question whether prices can be contro­ lled to restrain a person from selling his goods at a cheaper rate. Maybe that it it is sometimes necessary to eradicate the possibility of unhealthy; competition. . However, there is almost unanimity on the point that though it is not justifiable to impose such control when the market is regulated by the. ethical norms and the routine impact of supply and demand, but it is K necessary to fix prices if the increase in prices be due to the effect of hoarding, monoply, illegal and unethical trade practices. In such cases it isthe duty of the Government to control the prices of basic necessities o£ life. The law is not repugnant to Short a THE LAND CONTROL ( KARACHI DIVISION) ORDINANCE 1948 ORDINANCE NO. XXVI OF 1948 This Ordinance was repealed by West Pakistan Ordinance XII of 1964 which shall be examined later. THE PAKISTAN SPECIAL POLICE ESTABLISHMENT ORDINANCE VIII OF 1948 The Ordinance was repealed by the Federal Investigation Agency AcU 1974 (Act No. VIII of 1975. THE KARACHI RENT RESTRICTION ACT 1953 ACT NO. VIII OF 1953 This Act was repealed by S. 3 of the West Pakistan Rent Restriction (Second Amendment) Ordinance, 1962 in application to areas other than Cantonment areas. Later in the year 1963 the Cantonment Rent Restriction Act, 1963 was enforced and was made applicable to all Cantonment in Pakistan . The Act of 1953, therefore, stands impliedly repealed.

The following Acts and Ordinances stand repealed :— THE TRANSFER OF PROPERTY ( PAKISTAN ) ORDINANCE. 1947 IV OF 1947 THE PAKISTAN NATIONAL GUARDS ACT, 1950 ACT NO. XIII OF 1950 THE PASSPORT (OFFENCES) ACT, 1952 ACT NO. LVI OF 1952 THE GOVERNOR GENERAL PENSIONS ACT 1954 (ACT IX OF 1954 THE REGISTRATION OF CLAIMS (DISPLACED PERSONS) ACT, 1956 ACT NO. Ill OF 1956 THE PAKISTAN REHABILITATION ACT XL1OF1956 THE ESSENTIAL COMMODITIES ACT, 1957 ACT NO. Ill OF 1957 THE EVACUEE PROPERTY (MULTIPLE ALLOTMENTS) ACT, 1957 ACT NO. VriOF 1957 THE PAKISTAN (ADMlNSTRATION OF EVACUEE PROPERTY)ACT, 1957 ACT NO. XVII OF 1957 THE DRUGS AND MEDICINES (INDEMNITY) ACT, 1957 ACT NO. XVII OF 1957 THE MANOEUVRES AND FIELD FIRING (VALIDATION ACT. 1953 ACT NO. XII OF 1953 The following Acts and Ordinances are not within the jurisdiction of this Court and have not been examined for this reason :— 1. THE PAKISAN BANKING (PREVENTION OF DEFAULT AND EVASION OF LIABILITIES) ORDINANCE 1947 ORDINANCE V OF 1947 2. THE IMPORTS AND EXPORTS (CONTROL) ACT 1950 ACT NO. XXXIX OF 1950 3. THE INTERNATIONAL MONETARY FUND AND BANK ACT, 1950 ACT NO. XLI1IOF1950 4. THE HOUSE BUILDING FINANCE CORPORATION ACT 1953 ACT NO. XVIII OF 1952 5. THE TARIFF (AMENDMENT) ACT, 1956 ACT NO. XXVI OF 1956 (TQM) Declared accordingly.

P L J 1983 F S C 298 P L J 1983 F S C 298 (Original Jurisdiction) Present: aftab hussain. C. J., An hussain qazicbash, ch. muhammad siddiq & malik ghulam Au, JJ In re : Islamization of Laws—Public Notice No. 4 (i) Constitution of Pakistan , 1973—

Arts. 203-D & 203-B—Law—Repugnancy to injunction of Islam— Provisions of law advancing interest and good of public— Held : Statute as such not to be held repungnant to Sharta. [P. 313JD (ii) Constitution of Pakistan , 1973—

Arts. 203-D & 203-B—Law—Repugnancy to injunctions of Islam— Superior Courts—Judgments of—Relevancy of—Held : Judgments of Superior Courts to have no relevancy during consideration of question of repugnancy of law with Sharta. [P. 316]# (Hi) Constitution of Pakistan , 1973—

Art. 203-D—Federal Sheriat Court—Jurisdiction to declare laws repugnant to Sharta — Held : Laws legally existing only to be dec­lared repugnant to injunctions of Sharta and any declaration of repugnancy, if of no use, not to be made—Associated Press of Pakistan (Taking Over) Ordinance (XX of 1961)— (P. 335JZ (it) Constitution of Pakistan , 1973—

Art. 203-D— Federal Shariat Court —Jurisdiction to bring law in conformity with Islam—Statute though renderedr eduhdant remaining as existing law—Held: Federal Shariat Court to be duty bound to bring such law in conformity with Islam. [Pp. 334 & 337JF 41 AF (t) Constitution of Pakistan , 1973— —-Arts. 203-D <fc 203-B & Pakistan Criminal Law Amendment Act (XL of 1958)—Procedural law—Repugnancy to injunctions of Islam —Federal Shariat Court—Jurisdiction of—Held : Act X L of 1958 being Procedural law dealing with procedure in cases of bribery, misconduct, misappropriation, cheating, forgery and those under Prevention of Corruption Act (II of 1947) not to be within jurisdiction of Federal Shariat Court. [P. 302JB (t!) Agricultural Censns Act (XLI of 1958)— —S. 5(3) read with Constitution of Pakistan 1973—Art, 203-D—Crop-cutting experiments—Loss or damages to crops—Compensation for— Held: Compensation for loss or damage to crops caused by Crop- Cutting experiment in land selected by Census Officer to be required to be equal to such loss or damage:— Held further : S. 5 (3) of Act having given unrestrained power to jFederal Government to fix value (for loss or damage), such provision to be amended accordingly [Pp. 303 & $36}C&AB Capital Development Authority Ordinance (XXIII of I960)— -=S. 23—Acquisition of land—Compensation for— Held : Govern­ ment's power to acquire land for public good though unquestionable, such power generally to be exercised on payment of full

• compensation equal to market value of land. [P. 134JF (viii) Capital Development Authority Ordinance (XXIII of I960)—

Ss. 27, 30 & 2 (k)—Acquisition of land—Compensation for—Mar­ ket value—Determination of— Held: Market value to have relations to value prevailing at time of acquisition but not to be national value fixed in relation to time before such acquisition. [P. 3l5[G (ix) Capital Development Authority Ordinance (XXIII of I960)—

S. 49 (E) read with Civil Procedure Code (V of 1908)—S. 9— Civil Courts—Jurisdiction—Bar of—Held: Anything illegally done by Authority or its officers not to be said to have been done uuder Ordinance— Held further : Anything done mala fide also not to be - accepted as done under Ordinance and courts jurisdiction in such circumstances not to be barred. [P. 3i4]£ <x) Capital Development Aathority Ordinawe (XXIII of I960)— —S. 2 (k) read with Constitution of Pakistan, 1973—Art. 203-D— Market value—Definition of—Held : Definition of a 'market value being extremely arbitrary to be repealed. (Pp. 317& 336 ]K& AC <xi) Undesirable Companies Act (X of 1959)— •t——Vires of—Challenge to—Law enacted in public interest to save pub­ lic from becoming victim of fraud and to restrain any company from dealing in lottery business— Held: Law not to be open any objection Constitution of Pakistan, 1973—Art. 203-D. [P. 302J4 (xii) Disturbed Areas (Special Powers) Ordinance (LIV of 1962)—

S. 2 read with Constitution of Pakistan, 1973—Art. 203-D—Held ; (vide) powers having been given to certain officers to use force as t.o cause death of any person, in any area declared as "disturbed area" provisions for enquiry about correct use of force and pay­ ment of diyat to heirs of deceased person being necessary, necessery amendments ordered to be carried out, (Pp. 333 A 337) & AX (xiii) Port Authorities Land & Buildings (Recovery of Possession) Ordinance (IX of 1962)

S. 5 read with Constitution of Pakistan, 1973 — Art. 203-D— L aW s—Repugnancy to injunctions of Sharia —Right of hearing in appeal—Provisions regarding— Held : There being no provision for hearing by appellate court or authority, such lacuna to be removed by making specific provisions about affording opportunity of being heard to both parties. [Pp. 336 & 337] AA <t A G <x!y) Islamic Law A Jurisprudence—

Acquisition of land—Compensation for— Held: There being no Sharia limitation on Government's right to grant members of Umma in excess of their right, only restriction to be against causing of injury to their rights. [P. 316]7 (xt) Islamic Law & Jurisprudence—

Adi —Principle of— Held : Principle of Adi (justice) being one of fundamentals of Islam , duty of every Muslim to act justly and equitably and to remain impartial in dealings to become more onerous for those charged with functions of Government. [P. 328]g Holy Quran (5:8, 6 :153 ; 2 ; 190 & 194) ref. (xt!) Islamic Law & Jurisprudence

Justice—Administration of—Held: Hearing of both parties by Qazi or judge passing order being one of basic concept of Sheria : no person to be condemned unheard in matter involving his reputation, property or person—Held further Justice not only to be done but should undoubtedly and manifestly appear to have been done and any person having slightest pecuniary and proprietary interest in sub­ ject matter not to function as judge in that particular case. [P. 32SJM 4 N Holy Quran (7:59; 11:25; 11:32; 7:134; 38:26; 5:48; 5:49 ; Adah ul Qait (Vol. K, P. 413) ft Mejellee ref. (xvii) Itlmmlc Law & Jirispradence-

Justice—Administration of— Held'. Incase ofliklihood or appre­ hension of even technical bias, no one to be interested with adminis­ trative office {P. 32810 (xilll) Islamic Law & Jurisprudent

Justice—Administration of—Held: Sense of justice mutt be created by administering justice among people and balance to be required to be seen, noticed, appreciated and approved by those likely to be affected thereby. [P. 329JS (ill) Islamic Law & Jurisprudence—

Legislator—Duty of—Held : All laws in Quran and Sunnsh being presumed to be just laws, legislator to maintain such balance by forming just laws for Utumah. [P. 329J.R (xx) Islamic Law & Jurisprudence—

Loan—Duty of debtor to pay within time fixed— Held: Debtor under Sharla being duty bound to pay loan within time fixed, various steps including his arrert and detention in lock up for recovery to be taken against him in case of his failure to pay same—Co-operative Societies (Repayment of Loans) Ordinance (XXIV of 1960) & Cons­ titution of Pakistan, 1973—Art. 203-D. [P. 318]L (xxi) Islamic Law & Jurisprudence—

Natural justice—Principles of—Held: Principles of natural justice bavin? been applied not only to judicial and administrative matters but also to employment of officers of Government, same to be (re­ quired to be) made part of legislation in order to avoid any viola­ tion—Constitution of Pakistan. 1973—Art. 203-D. HP. 328]? (xxii) Islamic Law & Jurisprudence—

Principle of hearing—incorporation of—Held : Principles of hearing appellant must be incorporated whenever there be provision of appeal—Constitution of Pakistan, 1973—Art. 203-D. [P. 33l]U (xxiii) Islamic Law & Jurisprudence— —Principle of hearing—Express provisions regarding—Incorporation of— Held : Express provisions about hearing not strictly necessary to be made incases heard by court as courts of law never decide matters without hearing but fear of arbitrariness must be excluded by express provision in such behalf in cases of appeal to authority or Tribunal—Constitution of Pakistan 1973—Art. 303-D. [Pp. 331 &337 W&AD (xxiv) Law

Construction of— Held : Law being no mechanical process, every word in it to be given meaning. (P. 329)7 Dates Of Hearing : 24/25/29/30/31-1-1983 and 1/2/5-2-1983. order JAftab Hossain, C J.—A notice dated 22nd December, 1982 . was issued by this Court, in exercise of its suo-moto jurisdiction for exami­ nation of laws specified therein from Pakistan Code Volume 13 and 14 and for inviting public opinion on the question whether any of these laws or any poriton of law was repugnant to the Holy Quran and the Sunnah of the Holy Prophet. The following objections were received. 2. Ch Muhammad Afzal, Haji Muhammad Ayub & Agha Mubammadi Shah of Islamabad (jointly) CDA Ordinance 1962 2. M/s Abdul Ghaffar Khan, Hafeez Ahmad, Aleem-ud-din ft Fazal Hussain of Okara (jointly) (/) Medical A Dental Council Ordinance, 1962 (ii) Allopathic System (Prevention of Misuse) Ordinance 1962 (fit) Medical & Dental Councilordlnance 1982 3. Muhammad Jameel ArifGazdar of Karachi , (j) Undesirable Companies Act 1958 (ti) Criminal Law Amendment Act 1958 (ill) Agricultural Census Act 1958 (Iv) Public Order (Meetings) Ordinance 1958 (v) Public Order (Political Uniforms) Ordinance, 1958 (vt) Registration of Private Schools ( Karachi Division) Ordinance 1958 (vli) Control of Orphanage ( Karachi Division) Ordinance /9J8 (vill) Census Ordinance 1959 (ix) Control of Shipping Ordinance 1959 4. Malik Tajuddin of Islamabad Scrutiny of APP Taking Over Ordinance 1962 5. Dr.H.B Khan of Karachi . Syed Muhammad Gulazar Alvi of Oujar Khan and others Allopathic System (Prevention of Misuse) Ordinance. 1962 While examining these laws all these objections were taken into consideration. We are grateful to these gentlemen who made an attempt to assist this Court. (0 The Undesirable Companies Act X of 1958. This law was promulgated in order to prohibit the registration of certian companies and for the winding up and dissolution of such compan­ ies, the purpose of which was to promote or carry on any scheme or business whereby, in return for a deposit or contribution, whether periodically or therwise, of a sum of money in cash or by means of coupons, certificates tickets or other documents, payment, at future date or dates of money or grant or property right or benefit, directly or indirectly and whether with or without any other right or benefit, determined by chance or lottery or any other like manner, was assured or promised. The object of such companies was not only to set up business involving chance or " mery but also to defraud the contributors. No objection can be taken to this law which was enacted in the public interest to save the public from becoming the victim of fraud and to restrain any company from iealing in lottecy business. The act was challenged by writ petitions n the High Court of West Pakistan (Lahore Bench) by a number of companies but all 'hose petitions were dismissed by a Division Bench of the High Court. (See PLD 1958 Lah. 887, the Progress of Pakistan Co.. Ltd. Vs. (1) Registrar, Joint Stock Companies Karachi (2) Islamic Republic of Pakistan .) The law is not open to any objection. ' («) The Pakistan Criminal Law Amendment Act XL of 1958 This is a procedural law dealing with the procedure in cases of birbery, Jraisconduct, misappropricion, cheating, forgery and cases under the ^Prevention of Corruptaion Act. This is not within our jurisdiction. (Hi) The Agricultural Census Act, XLI of 1958 It is a law designed to collect information in regard to the following matters concerning agriculture. (a) Land ownership and land tenure; (6) Land unit and subdivision of land; (c) land utilization; (d) crop acreage and production; (e) livestock and poultry (/) employment in agriculture; (g) agricultural population; (A) agricultural power and machinery; (i) irrigation and drainage; (j) fertilizers and soil dressing; (k) wood and fishery products; (I) agricultural credit; (m) agriculture and sericulture; (n) fruit and vegetable products; and (o) such other matters as the Federal Government may, by notification in the official Gazette, specify. Such a census is necessary for a country having an agricultural economy and is in the public interest. No objection can be taken to the law or the object with which it was promulgated, however. Section 5(3) only requires consideration. Sub-sections (1) and (2) of Section 5 provide that for the purpose of collecting information crop cutting experiment may be conducted and for such experiment any land of any area may be selected to Which the Census Officer and the person assisting him shall be allowed access. Sub­ section (3) provides for payment of compensation to the owner or any other person entitled to the crop or any loss or damage caused to him by the conduct of crop cut ting experiment. But the loss or damage shall be such as the Federal Government may prescribe. This law gives an unrestraind power to the Federal Government to flxfc the value. The compensation should be equal to the loss or damage. Mr. Iftikhar Hussain Standing Counsel for the Federal Government states that no such contingency, according to his instructions, has ever

arisen and no rule exist on this subject. However this is no ground for maintaining this provision. It shall be amended as required at the end of the judgment. (iv) The Public Order (Meeting) Ordinance IX of 1958. The law is designed to preserve public order in public meetings and to prevent disturbance threats. It makes it an offence to act in a disorder­ ly manner for the purpose of preventing the transaction of the business for which the meeting is held. It also makes it an offence for a person to have with him any offensive weapon while present in a public meet­ ing or to use threat or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to he occasioned. The Ordinance is not open to any objection in Sharia. (v) The Public Order (Political Uniforms) Ordinance XV of 195%. The object of this Ordinance is to prohibit the wearing of uniforms in connection with political purposes and the maintenance by private persons of associations of a military or semi-military character. Section 3 thereof prohibits marching or parading in military order or wearing uniform signifying one's association with any political organization or with the promotion of any political object at any public place or in any public meeting. The proviso to the section authorises the District Magistrate to permit the wearing of such uniform at any ceremonial, anni­versary, or any other special occasion provided he is satisfied that it will not be likely to involve risk of public disorder. Section 4 prohibits organizing or training or equipping of members of adherents of any association or persons for the purpose of enabling them to be employed in usurping the functions of the police or of the armed force of Pakistan or organizing and training or equipping them for the purpose of enabling them to be employed for the use or display of physical force in promoting any political object, or in such manner as to arouse reasonable apprehension that they are organized and either trained or equipped for that purpose. . In case of violation of these provisions persons taking part in the control and management of the association, or organizing or training any members or adherents thereof, shall be guilty of an offence under this section. No objection can be taken to the law with such intention as given in Sections 3 and 4. The Ordinance is unexceptionable in Sharia, (iv) The Registration of Private Schools ( Karachi Division) Ordinance HI of 1958. The object of the Ordinance is to supervise and regulate the working of private schools in Karachi and to provide for registration of such private schools. This is a regulatory Ordinance. There is nothing in it which may be said to be repugnant to Sharia. (?«) The Control of Orphanages ( Karachi Division) Ordinance IV of 1958. It provides for the maintenance of and control over orphanages in the Karachi Division and for their licensing. It makes it incumbent upon the management to get medically examined any person admitted in. the orphanage within a week of bis admission and thereafter atleast once in 12 months. It also provides for maintenance of proper accounts and inspec­ tion of orphanages. It prohibits begging on the part of orphans and psovides that the Manager shall not permit any orphan admitted into bis orphanage to beg for alms or solicit for donation or subscription and shall also ensure that the orphanage is not used for any immoral purpose. As a matter of •auction it makes the contravention of any provision of the Ordinance, punishable with imprisonment, or with fine or with both. The object of the Ordinance is laudable and necessary in the interest of the Orphans whose up-keep and support is also the responsibility of the State. (vlll) The Census Ordinance X of 1959. This Ordinance provides for taking from time of census and for obtaining certain information with respect to the population in Pakistan . Nothing was found in this Ordinance which could be open to any objection in Sharia. (/) The Control of Shipping Ordinance Kill of 1959. It is a statute providing for licensing of ships taken to sea and regulat­ ing some aspects of the shipping business. It is not open to any objection. (x) The Pakistan Boy Scouts Association Ordinance XL1II of 1959. The Pakistan Girls Guides Association Ordinance XLIV of 1960. The Boy Scouts Association Ordinance incorporates the association of that name and deals with its constitution, powers, functions and its ex­ clusive right, to certain titles, uniforms, badges etc. The Girls Guides Association Ordinance similarly is for the incorporation of association of that name and for similar purposes. These two organiza­ tions, the object of which is public service, are extremely useful. Their incorporation provides an opportunity to the Government to keep an eye on their working as statutory corporations. There is nothing repugnant in them to Short a. (x!i) The Tea Ordinance XLVI of 1959. (xiil) The Tea (Control of Prices, Distribution and Movement) Ordinance XXVIII of I960. (xiv) The Plantation Labour Ordinance XXXIX of 1962. The firat Ordinance provides measure for the expansion of export of tea, for the setting up of bodies to establish new tea gardens and rehabili­ tate derelict tea gardens, and generally for the promotion of the tea industry, and for levying a cess on tea produced in Pakistan . For this purpose it provides for the setting up and constitution of the Tea Board (Section 3), its functions (Section 4), its superintendence and control (Section 5), Imposition of tea cess (Section 6) and the application of proceeds of cess (Section 7). V The cess is really meant to meet the expenses of measures taken in the performance of its functions by the Tea Board, for payment of contribution! to any international organization connected with tea and for contributing towards a contributory provident fund constituted and maintained for the benefit of the employees of the Board. It also provides for setting up of a Committee of the Board known as the Development Committee and its functions (Section 9 to 13) for control over cultivation and export of tea (Section 11 to Section 19-A) and some miscellaneous provisions including offences and their cognizance (Chapter V). The next Ordinance, as its name connotes, deals with the control of prices, distribution and movement of tea and for this purpose provides for registration of dealers (Section 3), ban of forward transaction (Section 5) restriction on dealings in tea (Seection 6) duty to declare possession of excess stocks (Section 7) fixation of prices (Section 8), fixation of quantities of tea to be held by approved dealers (Sections 9 to 11), restrictions on movements of tea (Section 12) information about imports to be furnished by importers (Section 13) disposal of imports (Section 14) information to be furnished by blenders (Section 16), marking of prices and exhibition of price lists (Section 18) and declaration of contraventions to be offences and procedure relating there to (Sections 21 to Section 23). The last Ordinance in relation to tea is for the benefit of the workers on the tea plantation and for the complete supervision of the facilities and amenities that must be provided to them. It specifically provides for arrangement by the employer of drinking water to them (Section 8), con­ servancy (Section 9), medical facilities (Section 10), canteens (Section II) rooms for the use of the children of the female employees during working hours (Section 12), recreation facilities (Section 13), educational facilities (Section 14) House facilities (Section 15), facilities for daily necessities (Section !6). holidays (Sections 18, 1^. 27, 28,29) wages during leave or holidays (Sections 27,28.30). and extra wages for overtime (Section 31). The contravention is made punishable and various sections provide for such offences as well as procedure to deal witt) their commission. All these Ordinances are not open to any objection. The tea is con­sumed generally by the public in Pakistan in Urban and Rural areas alike and has come to be treated as necessity. It has mostly to be imported from outside at great expense of Foreign Exchange. Such supervising laws are necessary. These laws also aim at saving the consumers from being fleeced by unscrupulous importers & sellers. The control of blending, import, fixation of prices as well as plantation is obviously to ensure not only the supervision of quantity but also of quality and value thereof to save the general public from being cheated and from the unscrupulous dealings of the producers, importers, blenders and the dealers. The last Ordinance which was very effective till the setting up of Bangla Desh is for the" benefit of the workers. No objection can be taken to these laws. (xv) The Power Alcohol Ordinance LIX of 1959. The object of the Ordinance is to provide for certain matters connected with the development of the power alcohol industry under Federal control. It prohibits the production of power Alcohol from any substance other than molasses and such other subsiance as may be specified by the Federal Government (Section 3). It authorises the Federal Government to regulate production and disposal of power alcohol by any distillery (Section 4). ft authorises the Federal Government to direct the obligatory admixture of power alcohol with petrol used in motor vehicles in such area as may be prescribed but the admixture shall not be more than 25 percentum or less than five per centum by volume (Section 5). Other sections are regarding penalty, delegation of powers, power to make rules and power of grant of exemption in any case or cases. No objection can be taken to such supervision and regulation by the Federal Government since inter alia it is of utmost necessity to save foreign exchange on the import of petrol. (xvi) The Industrial Dispute Ordinance LVl of 1959 This Ordinance was repealed by the Industrial Relations Ordinance of 1969 and will be considered atongwith the statutes of that year. (xvil) The Industrial and Commercial Employment (Standing Or den) Ordinnnce III of I960. This Ordinance was repealed and substituted by the West Pakistan Ordinance of 1968 and bearing the same name, it will be considered alongwith the statutes of that year. (xwi/) The Medical Qualifications {Information} Ordinance IV of I960, (xix) The Eye Surgery (Restriction) Ordinance LI of I960. (xx) The Medical Colleges Governing Bodies Ordinance XIII of 1961, (xxl) The Pakistan College of Physicians and Surgeons Ordinance XX of 1962. ixxll) The Medical and Dental Council Ordinance XXXII of 1962. (xxili) The Allopathic System (Prevention of Misuse) Ordinance LXV of 1962. (xxiv) The Medical and Dental Degrees Ordinance. XXVI of 1982. The Ordinance IV of 1960 is only meant to secure informations about persons having medical qualifications and qualified dentists, nurses, nursing orderlies, health visitors, midwives and assistant midwives; Sanitary Inspectors. Malaria Inspectors, Health Assistants, Dispensers, Compounder. Pharmacists, Physiotherapists, Masseurs, Physiotherapy technicians, X-ray and hospital laboratory technician medical instrument repair technicians. The next Ordinance aims at preventing eye surgery by a person other than a registered medical practitioner and provides for punishment of unqualified persons for performing eye surgery or for unlawful practice in it or holding himself out as an eye Surgeon. The Medical Colleges Governing Bodies Ordinance 1961 provides for the constitution of Governing Bodies for medica. collages of Pakistau for the efficient administration and management of the affairs of such colleges. It provides for supervision of college fund accounts and finances of these , institutions also. The Pakistan College of Physicians aud Surgeons Ordinance, 1962 was promulgated to establish a college of that name and for its management. The Medical and Dental Council Ordinance of 1962 consolidates the law relating to the registration of medical practitioners and dentists and reconstitutes the Medical and Dental Council in Pakistan in order to establish a uniform minimum standard of basic and higher qualifications in medicine and dentistry. The function of the Council is inter-alia recognition of the medical and dental qualifications even of institutions outside Pakistan and withdrawal of such recognitions (Section 11 to 22). It is obligatory on the Council to maintain a register of medical practitioners possessing the recognized qualification. Section 29 provides that no one other than the registered medical practitioner or a registered dentist shall be competent to hold any medical or dental appointment in a medical or dental college or its attached hospitals or as a Commissioned Medical or Dental Officer in any branch of the Armed Forces or as Medical or Dental Officer in any hospital, asylum, infirmary, dispensary or lying-in-hospital, maintained or aided by any Government, Railway or local authority, Necessary certificate required under taw can also be given by a registered Medical Practitioner or a registered Dentist only. The name of a Medical Practitioner and Dentist can be removed from the register for the reasons given in section 31. The Allopathic System (Prevention of Misuse) Ordinance prohibits the use of word 'doctor' or any of its grammatical variations, cognate expressions or abbreviations so as to give out that he is entitled to practice medicine unless he is a registered medical practitioner and registered dentist under the Medical and Dental Council Ordinance, 1962. The only medical degree or medical diploma which authorises a person to give him­ self out as a qualified medical practitioner or for any purpose connected with medical practice, shall be the degree or diploma conferred by a university or institution in or outside Pakistan which is recognized under the Medical and Dental Council Ordinance, 1962 (Section 4). Section 5 prohibits performing a surgical operation other than circum­ cision, incision of boils and administration of injections to any person other than a medical practitioner. No person other than registered medical practitioner or a person authorized by the Provincial Government is authorized to prescribe any antibiotic or dangerous drug specified in the rules made under this Ordinance (Section 6). Restriction is imposed on tbe sale of patent and proprietary medicines of the unani, ayurvedic, homoepatbic or biochemic system of medicine unless there if displayed on the labal or container (other than ordinary wrapper) the true formula of the medicine contained in it. (Section 7). The Medical and Dental Degrees Ordinance, XXVI of 1982 was promulgated to repeal the Medical Degrees Act VII of 1916 and to reenact the same provisions with certain modifications. It provides in section 3 that the right of confering. granting or issuing in Pakistan degrees, diplomas, licences, certificates or other documents stating or implying that the holder, grantee or recipient thereof is qualified to practise Scientific Medical and Dental System shall be exercisable only by the Universities in Pakistan and College of Physiciians and Surgeons of Pakistan and by such other authority as the Federal Government or. a Provincial Government may, by notifications in the official Gazette, and subject to such conditions as it thinks fit to impose, authorise in this behalf. "Scientific Medical and Dental System" i< explained in Section 2 as the 'Scientific method of Allopathic Medicine, Obsterics. Surgery and Dentistry, but does not include Homeopathic, Ayurvedie or Unani Systems of Medicines. Unauthorised conformation of degrees by any other person is prohibit­ ed (Section 4) and contravention thereof is made punishable (Section 5). Similarly false a>suoapiion or use of Medical and Dental titles is a punish­ able offence (Section 6). Objections were raised against the restrictions on medical or dental practices by persons other than registered medical or dental practitioners, on the only ground that it amounts to make unqualified persons jobless and unemployed. There is a Hadtth of the Holy Prophet (PBH) which also prohibits unqualified persons from practising medicines. The Hadtth is as follows : "It has been related by Amr Ibn-e-Shuaib who relates from his father and grandfather that the Holy Prophet said, "He who practises as a doctor and is neither a doctor nor bis practice as doctor \s known, he will be responsible (for the loss caused by his treatment) Umar bin Abdul Aziz relates from some of those who came to him that the Holy Prophet said "He who practises as a doctor and is neither a doctor nor his practice as doctor is known and, any loss occurs due to his treatment, he will be responsible for that". The object of the Ordinance is to have full supervision over medical practice and this supervision is inter alia a life saving device so that persons who do not know medicine may not indulge in medical practice and play with the life of the patients. We do riot find any thing in either of these statutes which may be said to be in any way repugnant to the Holy Quran and the Sunnah of the Holy Prophet (PBH). (xxv) The University of Karachi Ordinance V of 1962. The Ordinance was repealed by the University XVII of 1972 which will be considered later. of Karachi Ordinance The Claims for Maintenance (Recovery Abroad) Ordinance L of 1959. This Ordinance was enforced to give effect 10 the United Nations Convention on the recovery abroad of claims for maintenance. The [Convention is a part of the Ordinance and is added to it as a schedule. • Section 5 gives that Convention the force of law in Pakistan . The purposes of the Convention is dealt with in its Article 1 which is as follows :— "The purpose of this Convention is to facilitate the recovery of main- " . tenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be affected through the offices of agencies which will hereinafter be referred to as "Transmitting and Receiving Agencies". There is mutuality and reciprocity in the Convention since it is binding on all those members of the United Nations who acceded to it. Article 18 specifically provides that a Contracting Party shall not be entitied to avail itself of this Convention against other Contracting Parties except to the extent that it is itself bound by the Convention. No part of the Ordinance or its schedule is in any way bad in Sharia. (xxvti) The Pakistan Military Academy (Degrees and Certificates) Ordi­ nance LI of 1959. (xxviii) The Military College of Engineering, Risalpur (Degree) Ordinance XVIJ of 1962. The Pakistan Military Academy (Degrees and Certificates) Ordinance empowers the Pakistan Military Academy to confer a degree of B. Sc. or Certificate of Intermediate in Arts or in Science to any gentleman cadet of the Academy on his successful completion of the appropriate course at the Academy. Similarly the Military College of Engineering Risalpur (Degree) Ordinance deals with the constitution of the college and its powers, the appointment of controlling authority of the Commandant, of Academic Board and the functions of the Academic Board. The law was enlorctu to grant a charter to the college for the purpose of enabling it to award the degree of Bachelor of Civil Engineering and to provide for matters ancillary thereto. The Ordinances are not repugnant to Sharla. (xxix) The International Development Association Ordinance XX of I960. The Articles of agreements of the International Development Associa­ tion were approved by the Executive Directors of the International Bank for Reconstruction and Development on the 26th day of January, 1960 and were deposited in the archives of the Bank for signature and acceptance on behalf of Governments. The Ordinance was promulgated to provide for the participation of Pakistan in the said Association in pursuance of the aforesaid agreement. Certain provisions of the agreement which were required to have the force of law were given such force by Section 5. r Thcsc provisions of the agreement are included in its article 8 which are -" reproduced in the schedule and deal with the assets, immunity and privilege of the Association or its officers and employees. This is an International Agreement based on reciprocity between the members of the Association and is not repugnant to Sharia. (xxx) The Capital Development Authority Ordinance XXIII of 1969. (xxxi) The Municipal Administration Ordinance X of I960. The Municipal Administration Ordinance. 1960 was repealed in its, pplicability to :— (a) The Province of Pnnjab by the Punjab Local Government Ordinance VI of 1975 which was latter repealed by the Punjab Local Government Act of 1975. _ (6) The Province of Sind by the Sind Local Government Ordinance II of 1972. (c) The N. W. F. P. Province by NWFP Local Government Ordinance III of 1972 (d) The Province of Baluchistan by Baluchistan Local Government Ordinance I of 1972. The Ordinance was amended by Municipal Ordinance XXVII of 1981 to the extent of Islamabad Capital Territory (S. Sand the 4th Schedule). The following provision of the Municipal Administration Ordinance 1960 were made applicable to the Capital Development Authority by Section ISA of the Capital Development Authority Ordinance XXIII of 1960, since the Authority is vested with the functions of the Municipal Committee :— , (a) Sections 18, 33 to 73, 77 to 106, 109, 115 to 118 and 122. (ft) The second, third and fifth schedule so far as may be applied to the Islamabad Capital Territory as they apply to Municipality, referred therein : (i) to or to the powers and function of controlling authority being omitted and (ii) to Municipal Committee and Government being construed ae reference to the authority and the Federal Government. It was for this reason that the provisions of Municipal Administration "" Ordinance, 1960 were also examined by the Court. The Capital Development Authority was established for making arrangements for the planning and development of Islamabad within the framework of a regional development plan. The Ordinance provides for the constitution of the Authority (Chapter IF), its powers and duties (which aer in accordance with the object referred to above, (Chapter III), Estab­ lishment of the Authority, (Chapter V), and its Finances (Chapter VI). Chapter VII deals with the penalty and procedure of trials. There are certain miinscellaneous provisions dealing with submission of annual reports and returs (section 48), power of the authority to dispose of land (section 49), recovery of its dues as arrears of land revenue (section 49-A V summary ejectment of unauthorised occupants (49-B), removal of building erected or used in contravention of the Ordinance (49-C), Police assistance for discharge of functions of the Autboriiy (49-D), bar of jurisdiction of the courts (49-E), admissibility of document or entry in the record of the Authority as evidence (49-F), powers of the Federal Government to make rules (section 50), powers of the Authority to make regulations (section 51), Powers of the Federal Government to dissolve the authority and transfer its assets and liabilities to the Federal Government or any other agency determined by that Government, (section 52). l! also provides for acquisition of land to which reference will be made later (Chapter IV). The relevant provisions of the Municipal Administration Ordinance 'mainly deal with its functions as a Municipal Committee, charter of which is provided in section 18 of that Ordinance. Sections 33 to 41 deal with taxation. Section 42 to section 69 deal with the responsibility of the Municipal Committee in regard to sanitation which includes arrangement for cleaning or otherwise building or land as '(may be so specified (section 43). removal collection and disposal of refuse (section 44). establishing and maintenance of latrines and urinals (section 45). It also provides for maintenance of births, deaths and marriages register (section 46), prevention of infection diseases (section 47), establish­ ment, management etc. of health and maternity centres etc. (section 48), as well as Hospital and dispensaries (section 50), provision and maintenance of mobile medical aid units, promotion of medical education, medical inspection of school children etc (section 51). Section 53 to Section 60 deal with the obligation of the Municipal Committee to arrange for supply of water (section 52), and control and regulation of private sources of water supply .(section 53), to provide for adequate drainage system (Section 54), to prepare drainage schemes (section 55) to arrange ft r bathing and washing places (Section 56) Dhobi ghats and washermen (Section 57), public water courses (Section 58), public ferries (section 59), and Public fisheries (Section 60). Section 61 to Section 65 deal with articles of food and drink. Provi­ sions are made for supervision of supply of article of food (section 61) and milk (Section 62) establishment aud maintenance of public markets (section 453), supervision of private markets (section 64) and provision and main­tenance of sites for Slaughter Houses (section 65). Section 65 to 73 provide for animal husbandary establishment and maintenance of veterinary hospital and dispensaries, (section 66). It provides for measures for prevention of contagious diseases (section 66), seizure, detention and impounding of animals found straying in any street, public place or cultivated land (section 67 establishing animal homes and farms (Section 68) registration of the sale of cattle (section 60), framing and executing livestock scheme (section 70) detention, destruction or disposal of the dangerous animals (Section 71), holding cattle shows (Section 72) and disposal of carcasses (Section 73). Chapter VI deals with building control so that a building may be erected on the approved site and under a building plan sanctioned by the Municipal Committee. Chapter VII (from Section SO to Section 87) makes provisions for maintenance of public streets (Section 80), supervision of the streets (Section 81) removal of encroachments (Section 83), for street lighting r~ (Section 84), Street watering (Section 85) Traffic control (Section 86) and public vehicles (Section 87) Chapter VIII deals with provisions for fire fighting (Section 88), Civil Defence (Section 89), Floods (90). (Famine 91), dangerous and offensive articles and trades (Section 92), provisions of places for burial and burning (Section 93). Chapter IX from Section 94 to Section . 99 deals with provision and maintenance of street, parks, gardens and forests. Chapter X (Section 100 to 102) obligates the Municipal Committee to . • maintain educational institutions (Section 100), enforce compulsory educa-- ation (Section 101) and take steps for promoting and assisting education (Section 102) by interalla constructing of building to be used as hostels for students, giving scholarships to the students, providing for the training of teachers, promoting adult education, providing school bjOok to orphans, maintaining deports for the sale of school books and art cle, of stationery, promoting and assisting educational survey and providings either free of charge or no payment milk or meals for children. Section 103 makes it obligatory on (he committee to establish and maintain information centres for the furtherance of civi) education and dissemination of information on matters of community development and public interest, maintaining radio sets at public institutions, organizing museums, exhibitions and art galleries, providing and maintaining p ublic halls and community centres, celebrate the Holy Prophet's Birth day Pakistan day. Ouaid-i-Azam's Birthday and other national holiday, encour­ age national and regional languages, public games and sports and organize rallies and tournaments ; promoting tours to the municipality and adopiing measures for the preservation of the historical and indigenous characteristics of the municipality, providing, promoting or subsidizing facili ies for the recreation of the public. Section 104 deals with the establishment and maintenance of public libraries, reading rooms and circulating libraries. Section I OS obligates the committee to arrange for fairs and show or festivals necessary for the public health, public safety and public conveni­ ence. Section 106 makes it incumbent upon the Municipality to manage and maintain welfare homes, asylums, orphanages, widow homes and other institutions for the relief of the distressed ; provide for the burial and burning of paupers found dead within the municipality at its own expense ; adopt such measures as may by prescribed for the prevention of beggary, prostitution, gambling, taking of injurious drugs and consumption of alcoholic liquor, juvenile delinquency and other social evils ; organizing social service volunteers and providing for measures for (he welfare of ackward classes, families of the persons serving in the Armed Forces, and women and children. Section 109 authorises municipal committee to promote, administer, execute and implement schemes for undertaking any commercial or business enterprise. Sections 115 to 118 deal with offences and their penalties while ' "- Section 122 authorises the municipal committee to frame by laws. The second schedule details the offences referred to in Section US . The third schedule deals with taxes, rates, tolls and fees which may be levied by a Municipal Committee. The fifth schedule is about matters respecting which by-laws may be framed under Section 122. These particulars have been given in detail in order to show that the Objectives of two Ordinances are firstly the planning and development , of the Capital and secondly compelling or authorising the Capital 1 <f Development Authority to perform functions of a Municipal Committee and to provide for the cleanliness, the health, the education of the inhabitants to ensure supply of good articles of food and milk, to promote the interest of different sections of the public including the backward classes and businessmen. All these provisions are for advancement of interest!- V and good of the public. Such statutes cannot, as such be held to be» repugnant to Sharia. It is necessary now to deal with an objection raised in writing by Mr. Muhammad Afzal (who was also given hearing by the Court) and tome provisions relating to acquisition of land by the Capital Develop­ ment Authority. The objection in writing referred to above pertains to the provisions of Section 49 (E) in which it is provided that: "Save as otherwise provided by this Ordinance no court or other Authority shall have jurisdiction to question the legality of anything done or any action taken under this Ordinance by or at the instance of the Authority.; The objection is that there is no reason why the action taken by the Authority or anything done by It should be exempted from the jurisdiction of the Court. The objection as such is not of such a nature that it may effect the vires of the provision under Sharia since in Sharia, the Imam or Amir (the legislator now) has the right to establish Court and fix the limits of their jurisdiction. Doctor Tamawi writes in his book Assultatul Solas, ''the Imam and (Governor) has the power 10 fix the limits of the jurisdiction, of a Court or Qazi whether in a specific area, or for specific time or for specific kinds of cases. In these cases it is not allowed to the Court or Qazi to go beyond the limit of that jurisdiction. (Assultatul Solas by Doctor Suleman Muhammad Tamawi pages 423 and 424) [See also Ahkamul Snltania by AI-Mawardi (Urdu translation pages 129 to 131)]. Even otherwise this objection is without force since what is protected From the jurisdiction of the civil Courts is anything done or any action taken under this Ordinance by or at the instance of the authority. Accord­ing to the well established rules (vide authority precedents and superior Courts on the interpretation of section 9 CPC) anything illegal done by ihe Authority or its officers cannot be said to have been done "under his Ordinnace" Similarly any thing done mala fide will not be accepted as done "under this Ordinance". The Court's jurisdiction in such circumstances is not barred. As stated-above Chapter 4 of the Capital Development Authority deals with the acquisition of land. These provisions are slightly in variance with the provisions of the Land Aequisition Act. The acquisition is possible only of land within the specified areas (section 22) which are described in the schedule under the heading "limits of the specified areas". The authority is empowered to enter upon and survey and take levels of any land to do all other things necessary for determining fittnesises for acquisition (Section 23). If any damage is caused in consequence of anything done in persuance of Section 23 the Authority • is bound to pay compensation which can either be fixed by agreement or shall be fixed by the Deputy Commissioner (Section 24). The second alter­ native of decision evidently implies that the Deputy Commissioner shall have to hear the persons entitled to compensation since the first alternative of agreement makes it incumbent that they shall have to be heard. The word 'Agreement' itself entails bargaining which requires the presence of both the parties. Section 25 authorises the Deputy Commissioner subject to the specific direction of the Authority, to acquire the land. Section 21 provides for notice to be given of the intention to acquire land and to inviie claims of compensation. Section 28 authorises the Deputy Commissioner to give an award about compensation payable to persons having interest in the land acquired and such compensation is be assessed on the market value of the land. While fixing the compensation the Deputy Commissioner must take into consideration the matters specified in Sections 30 and 31. On the making of the awards under Section 28 the land shall vest in the authority free from all encumb­ rances and the Deputy Commissioner may after notice enter upon possess­ ion of the same. (Section 32). However, in cases of urgency the Deputy Comrnissiaor may enter upon the land and take possession of it immediatly after the publication of notice under sub-section (1) of section 27 after giving a notice of atleast 24 hours to the occupier. The Goverment's power to acquire land feu- public good is uuquestionled. [See Muhammad Amin Vs. Federal Government of Pakistan PLD 1981- jfsc 23 (66)].But this power can generally be exercised on the payment of Hfull compensation which should be equal to the market value of the land l(ibtd), It follows that the Government can delegate such power to any . subordinate or to any other amhority which performs some functions of the State. The Capital Development Authority, as seen above, is set up to plan particularly the schemes for setting up the Capital and execute and im­ plement the same. It also performs Municipal functions under the Munici­ pal Administration Ordinance 1960. It is consequently a body which does perform certain functions of the State viz-a-vtz the Islamabad Capital Territory , The power to acquire land with which it is vested is itself the State power which has been conferred upon it. There can be no objection in Sharla to conferment of power of acquisition on it provided it pays the market value as compensation. Sections 27 and 30 are worded in accordance with this principle and provide for compensation to be inter, alia the equivalent of the market value but Section 2 (K.) makes a complete departure from it. This clause defines market value as something which bat no relation to the market value on the date of acquisition. It is as follows :— Market value means :— (i) in relation to land acquired before the first day of January, 1968. the average market value thereof prevailing during the period commencing the first day of January, 1954, and ending on the thirty first day of December, 1958; and (tt) in relation to land acquired on or after the first day of January, 1968, the aggregate of the average market value aforesaid deter­ mined with reference to its classification recorded in the Re­ gister of Haqdaran Zamin as in force that day and twenty five percent of such value. The Market value must have relation to the value prevailing at thq time of acquisition and not a no lional value fixed in relation to the timeK when even the question of acquisition did not arise. The Capital was| shifted from Karachi to Rawalpindi after the revolution of 8th October, 19S8. The Capital Development Authority was constituted with a view to the construction or the Capital at Islamabad , in the year 1958 but it is strange that the market value is the average of the value from January 1954 to December, 1958 which has absolutely no relation to the intention to acquire or to the actul acquisition. It is clear that the acq­ uisition starts with the proceeding under Section 25 since no notice is provided before that for inter alia entry upon and survey of the land required, The market value should, therefore, be the value at least prevail­ ing on the day when the proceedings under Section 25 are undertaken. The learned counsel for the State argued in favour of this definition. He submitted that this is a matter which is past and closed since it relates to acquisition prior to the 1st January, 1969. This is not correct Since the aggregate of the same average market value with an addition of 25% is provided for acquisition made on or after the 1st January, 1968. It was also not denied that many a case of .compensation in regard to acquisition made prior to 1st day of January, 1968 are still pending. Mr. Iftikbar Ahmad, Chaudhary sought detailed instructions in writing from the Authority on this question and submitted these instructions with a covering letter 25/FS/83 dated 5-4-1983. The sum and substance of the position taken by the Capital Develop­ ment Authority is that the Deputy Commissioner, in case of acquisition after 1-1-1968 has to find out whether the classification of land is the same as in tbe period from 1954 to 1958. He then determines the average value to which an amount of 25% is added. Thus the material date is the date of acquisition only. The potential value of land is never lost sight of, nor is excluded from consideration the individual merit of parti­ cular land acquired within the same classification to which that land belongs, without, however, affecting or changieg the general classification of that land. While assesring the compensations the guidelines and principles as laid down by the Lahore High Court in Mst. Sardar Begum and others v. Capital Development Authority, Islamabad and others (PLJ J 977 Lah. 605) are followed. Practically speaking they "are awarding potential value at the time of compensation, in tbe case of land upto 6. 4 times the average value of 1954-58 and upto 11 times for the built up property In addition to this 25% and 15% of the total value as also being paid under Section 2 (k) (;'/) and Section 30 (2) of ihe Ordinance respectively. "The compensation thus being awarded and actually paid to the '• affectees is higher than the prevalant market value.'. The judgment of the High Court or the Supreme Court of Pakistan re not releveant during the consideration of the question of repugnancy f a law with Shar\a. The High Court of Pakistan and the Supreme Court of Pakistan were only interpreting the provisions of Section 2 (k) of the Ordinance. This is made clear by theobservation at page 608 of the above Report that the definition in Section, 2 (k), Contained an embargo and that was against any rise in level of price" case reliedupon is of no assistance on the point before this Court. It is said that the value of built up property is eleven times and the consideration of potential value of land in-creases the value to 6. 4 times. In addition 25% of the value as required by Section 2-K and 15% of the value under Section 30 is also paid and thus a much higher amount of compensation is paid than would be payable according to tbe market value of the land. This argumeru misses the point that in addition to market value other damages and compensation for compulsory acquisition are also payable in law. Any preference to those matters is absolutely irrelavant. There is no basis for the factual statement that higher value is being paid as a result of assessment on the basis of aggregate of the value of the years from 1954 to 1958. But if this be so the rule should be that compensation should be assessable on the formula already followed as well as on the basis of the actual market value as prevailing on the date of acquisition. To These as-,esmenis should be added other compensation under Section 30 of the {Ordinance. The persons having interest in land shall then be sentitled •/Ito the higher of the two values. This is because there is no Sharia limitation |on the Government's right to grant to the members of the Ummah in excess of their right. The restriction is only against causing of injury tojtheir rights. The roinmum compensation should be equivalent to what they! suffer. However this Court can enforce the minimum and cannot direct the ^~" Government to make a grant which cannot be claimed as a matter of right. The show of magnanimity is for the State and not for the Court and such matters can be considered by the Legislature which has to act for the maximum good of the public. e see no logic or reasoning behind this provision. The definition ofi^ market value is extremely arbitrary and must be repealed. We, therefore,/ direct that the definition be omitted and repealed and the words "as on the date of order under Section 25" be added after the words "market value of the land" in Section 30 (1). Before finishing this matter we may explain Section 38 (2) and (3) of the Municipal Administration Ordinance to meet a point raised during examination of that statute. Section 38 is as follows : "38.— (I) All taxes, rates, tolls and fees under this Ordinance shall be • collected in the prescribed manner. (2) All arrears of taxes, rates, tolls and fees, and other moneys claimable by a Municipal Committee under this Ordinance shall be recoverable as a public demand or as arrears of land revenue (3) Notwithstanding the provisions of such section (2), the Government may empower a municipal Committee to recover arrears of taxes, rates, tolls, fees and other money claimable by the Municipal Com­ mittee under this Ordinance by distress and sale of movable property belonging to the person concerned, or by attachment and sale of the immovable property belonging to him. (4) The Government may be rules specify the officials or classes of officials by whom the power under sub-section (3) shall be exercised, and prescribe the manner in which i; shall be exercised." Sub-section (2) provides that arrears of taxes, rates, tolls and fees and other moneys shall be recoverable as a public demand or as arrears of land revenue. Sub-section (3) provides that notwithstanding this provision the Government may empower any Municipal Committee to recover the above arrears bv distress and sale of movable property belonging to the per­son concerned, or by attachment and sale of the immovable property belong­ ing to him. It may be noticed that there is no provision for paying any surplus money to the person concerned and this night involve him in difficulty in recovering what actually belongs to him after the payment of arrears. In order to clarify this we may explain that any money recoverble as arrears or land revenue is recoverable by resort to the procedure given in the Land Revenue Act 1967 and the step for recovery can be taken by the collector. That nower in respect of distress and sale of roevable property and attachment and sale of immovable property is conferred upon the Municipal Committee which means that the Municipal Committee shall adopt the same procedure with the only difference that it may be substituted for the collector. The procedural provision of the Land Revenue Act for recovery of such arrears shall remain applicable. The Land Revenue Act 1867 provides for payment of the surpls amount to the person to whom the property belonged. It was not, therefore, necessary to orovide for this. However the rules framed by the Government specifically provide for such procedure. (xxxli) The Civil Aviation Ordinance XXXIII of I960 and the Pakistan Civil Aviation Authority Ordinance, XXX of 1982 The first Ordinance was promulgated to make better provision for the control, manufacture, possession, use, operation, sale, import and export of aircraft, the control and regulation of air transport services and the control and development of aerodromes in Pakistan . There can be no two opinions on such a regulatory law which cannot be said to be in any manner repugnant to Shariat nor it is actually so repugnant. The Ordinance of 1982 establishes a Civil Aviation Authority inter-alia to frame schemes for provision of civil airports and aerodromes in the Country, provision of traffic services to aircraft navigational Services to aircraft and various other improvements managements of estates at airports and aerodromes etc, The Ordinance is only regulatory in character. (xxxtii) The Cooperative Societies (Repayment of Loans Ordinance XXIV of 1960) The Ordinance provides only frr the repayment of loans which have already become payable to any cooperative society and for having the, loan secured if the same are insufficiently secured. In Sharia it is duty of the debtor to pay the loan within the time fixed and in case of non­ payment, various steps for recovery can be taken against him including his arrest and detention in the lock up. Tabicul Haqaiq by Zailai Vol : IV pagelSO, Attaazir Fishshsariatila IslamiaH by Doctor Abdul. Aziz Amir pages 412-414). The law does not contravene and sharia provisicn or principle. (xxxv) The Gwadur (Application of Central Laws Ordinance XXXVII of I960 Gwadur, was ceded to Pakistan on the 8th day of Septmeber, 1958. The Ordinance only makes provisions for application of the central laws to the newly acquired territory. It is not repugnant to Sharia. " (xxxv) The Coal Mines (Fixation of Rates of Wages) Ordinance XXXIX of 1969 The Ordinance provides for fixation of minimum rates of wages to coal mines workers. Nothing therein is in derogation of any principle of Sharia. On the other hand its object is utiltarian and is to end the exploitation of such workers. (xxxiv) The Probation of Offenders Ordinance XLV of I960 This Ordinance enables the courts to make an order in respect of the category of convicts described therein by which an an effort be undertaken to reform them by keeping them under the supervi­ sion of probation officers instead of sentencing them immediately at the trial. It saves the convict from the company of hardened criminal in jail and it furnishes anoppoiunity to him to show good conduct during the time fixed for his supervision by the Probation Officer. It provides for the appointment of Probation Officers, and deals with their duties. This is a laudable object since the convict is protected from the corrupting influence in Jails. If however, the offender fails to observe the conditions of the bonds it is open to the Court to remand him to judicial custody and not only forfiet his bond but also sentence him for the original offence (Section 7). There is nothing in this Act which may be violative of the Holy Quran and Sunnah. as it does not interfere with Hudood Sentences. Its applicability is confined to matters of tazir. (xxxvtt) The Public Investments (Financial Safeguards) Ordinance XLVI of I960 This is a regulatory law and provides for financial safeguards in respect of certain investments made out of public revenues. The law is not repngnant to the Quran and the Sunnah. (xxx»itt\ The Jammu and Kashfmr (Administration of Property) Ordinance W of 1961 The Ordinance vests in the Federal Government certain immovable properties which were vested in the State of Jammu and Kashmir prior to Independence . The law is designed to provide for adminis­ tration and management of that property. Though the civil courts" jurisdiction is barred in respes of (a) ctuits, prosecution or proceedings against the Government or any other person for anything done in good faith or intended to be done under the Ordinance and (h) as required any o ther proceeding in respect of suce property or of any matter within the competence of the Federal Government, but the Ordinance doe% provide for adjudication of disputes. This power vests in the Admnistrator who can act only after affording any person aggrieved, an opportunity of being heard personally or through counsel or a duly authorised agent. (Section 3. A) It also provides (Section 3.B) for an an appeal against the order of the Administrator to such authotity as the Federal Government may specify and such authority, shall act as a Civil Court and can pass such order as it thinks necessary. The order of fhe appellate Authority is revisable by the Federal Government. There is nothing in this law which may be said to be repugnant to holy Quran and the Sunnah of the holy Prophet. (xxxix) The Political Parties Act W of 1962 The vires of this Act viz-a-viz Sharia were considered by this Court in an application by (Retd) Mr. Justice B. Z. Kailkaus. The entire Act and particularly its Sections 3 and 4 were challenged alongwith two Election laws. The Court held that the Act had been enacted in implementation of the provisions of Article 17 of the Constitution which regulates and controls the activities and conduct of a political party. Any opinion on its vires may affect the vires of Article 17 of the Constitution. Consequently the Court had no jurisdiction in respect of the above Act. The Federal Shariat Court also found the Act to be unobjectionable in Sharta as is evident from the following portion of the judgment:— (PLD 1981, FSC. I). "In the second ptace, if the Political Parties Act be declared as null and void its consequence will not only be disastrous but also, be contrary to its own intention. Such an effect will be to cause harm rather than to confer any benefit on the country. This is obvious for although the citizens will have the right to form political party there will be nothing to check and control its activities if they turnout to be harmful or even hostile to the count itself. Mr. Kaikaus has frankly conceded that he has not considered this aspect of the matter, and has certainly no intention of causing any further deterioration that will inevitably ensue if a vacuum be created due to the removal of the said Act from the field". Two other petitions were filed against the validity of the same Act, in one ot which (Shariai Petition No. 66 of 1979) the Political Parties (Amend­ ment) Ordinance XLII of 1979 which made inter alia provisions for registra­ tion of the Political Parties, was specifically challenged. These two petitions (S P. No. 28 of 1979 Karachi, Habibur Rehman Kandhaltvi Vs. Government of Pakistan and Shariat Petition No. 66 of 1979 Lahore, Raja Muhammad Afsar Vs. Federal Government of Pakistan) were dismissed on the 13tb of December, 1980. It was observed that t e criticisim against the Act, more or less, was on the same line as that in the case of B, Z. Kaikaus and the judgment in that case will cover these two cases as well. In view of this, this Act need not be examined any more. (xi) The Institute of Chartered Accountants Ordinance X of 1961 This Ordinance provides for the setting up as a body corporate of the Institute of Chartered Accountants (Section 3) of Pakistan , which can register the Chartered Accountants (Section 4). The Institute is entitled to issue certificates of practice without which no member of the Institute is entitled to practise as an Auditor of a public campany as defined in the Companins Act 1913. It deals with the qualification of persons entitled to be registered (Section 4) as well as lack of qualification or disqualifiactions which restrain them from having their names entered in or borne on the Register (Section 8). It provides for setting up a Council of the Institute for the management of the affairs of the Intitule. (Section 9). The Council has to maintain the register of member; (Section IS ) and has the right to remove from the register such names for reason given in Section 19. The object of the Ordinance is to regulate the registration and practice of the Chartered Accountants in Pakistan . It is not in any way repugnant •o the holy Quran or the Sunnah of the Holy Prophet. The Pakistan Ordinance Factories Board Ordinance XVU of The Ordinance provides for the constitution of the Ordinance Factories Board and for investing it with certain powers and functions of the Federal Government in relation to the ordinance factories. The Ordinance is not ultra vires of the Sharla. • ••.•••• (/«) The Notaries Ordinance XIX of 1961 The Ordinance provides for regulation of the^rofession of notaries in Pakistan . The Notaries are to be appointed from among legal practi­ tioners or other persons possessing such qualifications as "may be prescribed by the Provincial Government" (Section 3) to do all or any of the following acts by virtue of their office, namely : (a) Verify, autheacticate, certify or attest the execution of any instrument ; (b) present any promissory note, hundl or bill of exchange for acceptance or payment or demend better security ; (c) note or protest the dishonour by nonacceptance or non-payment of any promissory note, hundl, or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881, or serve notice of such note or protest; (d) note and draw up ship's protest, boat's protest or promt relating to demurrage and other commercial matters ; (e) administer oath to, or take affidavit from, any person : (/) prepare bottomry and respondantia bonds, charter parties and other mercantile. documents. (g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside Pakistan in such form and language as may conform to the law of the place where such deed is intended to operate ; (h) translate, and verify the translation of, any document from one language into another ; (/) any other act which may be prescribed. The Act does not contain anything which may be if any manner in opntravention of any principle of Sharia, (xllii) The Road Transport Workers Ordinance XXV III of 1961 The Ordinance regulates the hours of wbrk and other conditions of employment of road transport workers in Pakisian. It is not only favourable to the workers but also advances the public interest since it provides for age limit for the drivers as also the hours of their work so that they may not be subjected to weariness which may be fatal some times for road transport. (xliv) The Oil and Gas Development Corporation Ordinance XXXVUofl96l The Ordinance establishes Oil & Gas Corporation and provides for its management. It lays down its functions, There is nothing in this law which may be considered to be in any way repugnant to Sharia. (xlv) The Minimum Wages Ordinance XXXIX of 1961 This Ordinance provides for the regulation of minimum rates of wages for workers employed in certain industrial undertakings. It provides tor the establishment of a Minimum Wages Board which from time to time oa reference from the Provincial Government recommend to such Govern­ ment after such enquiry as it thinks fit, the minimum rates of wages for adult unskilled workers and juvenile workeas employed in indestrial undertaking in the Province. It is on such recommendations that the Provincial Government is empowered to declare the minimum rate of wages and no employer shall thereafter pay any worker wages at a rate lesser than the rate declared to be the minimum rate of wages for sucfa workers. The law is very beneficial for the working class employed in Indus­ trial uddertakings (xlvl) The Conciliation Courts Ordinance XLIV of 1961 The Ordinance provids for establishment of Conciliatson Courts to enable people to settle certain disputes through conciliation and for matters connected therewith. Those cases, civil as well as criminal, are detailed in the Ordinance. The Ordinance deals with the procedure to be followed by the Conciliation Courts whose composition is also provided therein. The main object of the law is that criminal cases of petty-nature and some civil cases may be disposed of by these Courts and thus justices may be taken to the home of the litigants. Conciliation Courts consist of the Chairman and two representatives to be nominated by each of the two parties to the dispute. It helps not only in creating confidence in Courts but also in the decision of disputes by compromise. An application against the decision of the Conciliation Court is also competent to the Controlling Authority in some cases and to the District Judges in others (Section 7). The Act is not ultra vires of any Sharia principle. (xhii) The Trade Organizations Ordinance XLV of 1961 The Ordinance provides for the regulation and control of Trade Organizations i.e. (a) Federation of Chambers of Commerce and Industry, organized on all- Pakistan basis, to represent Chambers and Associations referr­ ed to in clauses (b) and (c), 1983 /» r: jsumizatjon of laws—public notice no. 4 FSC 323 (6) a Chamber of Commerce and Industry, organized to represent trades and industries of specific areas ; <c) an Association of trade or industry or of both, organized on all- Pakistan basis, to represent specific trades or industries or both ; (d) a Town Association, organized to represent trade and industries at a place at which there is no Chamber of Commerce and Indus-try ; or (e) a Group, organized to represent specific trades or industries or both of specific areas : This purpose is achieved inter-alia by registration of such organization, and licensing for eligibility to registration. The Trade Organizations are made subject to the control of the Director appointed for this purpose (Section 9.) We do not find any provision of the Ordinance to be contrary to Sharta. (xlvlii} ThfrVoluntary Social Welfare Agencies (Registration and Control) Ordinance No XLVl of 1961 As the name of the Ordinance suggets it provides for the registration and control of voluntary social welfare organizations. It provides that every registered agency shall maintain audited account in the manner laid down by the Registration Authority ; submit annual reports and audited accounts to Registtaion Authority and publish the same for general information; pay all moneys receiped by it into a separate account kept in its name at such Bank or Banks as my be approved by the Authority and furnish to the Registration Authority such particulars with regard to accounts and other records as the registration Authority may from time to time require. (Section 7). Obviously such supervision is necessary to save the social welfare organizations from onslought of unscrupulous persons. Nothing in the Ordinance is open to Sharla. (xlix) The Pakistan Standards Institution (Certification Marks) Ordinance XLVIII of 1961 The object of the Ordinance is to proivde for the standardization and making of goods by the Pakistan Standard Institution which can exercise the following powers: (a) establish and publish, in such manner, as may be prescribed, the Pakistan Standard in relation to any article or process; (b) specify a Standard Mark to be called the Pakistan Standards, Institution Certification Mark, which shall be of such design and contain such particulars as may be prescribed to present a particular Pakistan Standard; (c) grant, renew, suspend or cancel in such manner, as may be prescribed, a licence for the use of the Standard Mark; (d) levy such fees for the grant or renewal of any licence as may be prescribed; (e) make such inspection and take such samples of any material or substance as may be necessary to see whether any article or process in relation to which the Standard Mark has been Used conforms to the Pakistan Standard or whether the Standard Marks has been improperly used in relation to any article or process with or without licence; (/) do such other acts as may be prescribed; Section (S) prohibits the use in relation to any article or process or in the title of any patent, or any trade mark or design the Standard Mark or any colourable icrifation thereof, excpt£ender a licence granted under this Ordinance and unless such article or process conforms to the Pakistan Standard. The Standardization is necessary in the intreest of export ef goods manufactured in the country', No objection can be t::ken to any portion of the Ordinance except Sub-section (3) of Section 13 which deals with appeals to the Federal Government filed by any person aggrieved by an order passed under clause (c) of Section 3 (reproduce! above. There is no provision whether the Government is bound to give any hearing to the appellant. We have gone through the rales under this law particularly rule 15(2) which relates 10 appeal but it merely says that the Govern­ ment may call for the relevant record from the Institution and may after such enquiry as may be considered necessary, pass such order as it considers fit. This provision also does not provide for hearing. It is no doubt true that in accordance wilb toe judgment of the Supreme Court in Chief Commissioner Karachi Vs. Mrs. Dina Sohrab Khatrak, [PLD 1959 SC (Pak) 45J the appellant must be heard in appeal. As held in the University of Dacca Vs. Zaklr Ahmad, [PLD 1965 SC 90(103)], Abdus Sabour Khan Vs. Karachi University [PLD 1966 SC 536 (539)1, Abul Ala Maudoodi (PLD 1%4 SC 673), Commissioner of I. J.v. Fazlur Rehman [PLD 1964 SC 451 (435)]. the provision of hearing of the party shall be read in every statute even though it be silent on that point but there is no reason why the statute itself should not clarify this point. One of the basic concept of Sharia in the administration of justice KAdl) is the hearing of both the parties by Qazi or Judge before passing ^Ithe order. This is known as the principles of natural justice which infcludes the following principles :— (1) Ho person should be condemned unheard in a matter involving his reputation, property or person ; (2) justice should not only be done but should manifestly and un- N doubtedly appear to have been done; and (3) a Judge having the slightest pecuniary and proprietary interest in the subject matter of proceedings or a person who is likely to be a Judge in bis own cause shall not function as a Judge in his own cause shall not function as a Judge in that particular case. These principles may be discussed in the light of Quran, the Sunnah of the Prophet and his companions. The Holy Quran laid down the procedure which Allah has ordained to be adopted on the day of judgment to requite the virtuous and to punish the recalcitrant. It is provided that full accounting of one's virtue or vices will be carried on. Since Allah has made Jt a rule to get every action of a person recorded in his record of actions (Amalnama) a copy of his record shall be given to every one in his right hand if his virtues override or weigh more than his vices and in his left hand or from his back side, if otherwise. In the way that a show cause notice is given. he will be confronted with the wrongs and sins committed by him in his stay in this world, then evidence of his hands or other parts of tb$ body as well as other evidence shall be taken before sentencing him to hell. Two of the qualities of Allah are that He is All knowing and Aware of everything. He has full knowledge of the virtues and misconduct of . every human being. He is also just. He can therefore requite a person for his good deeds or send him to hell for his wrong doing on the basis of His own knowledge. But obviously He has laid down such a con­summate procedure firstly in order to satisfy the principle that no one would be condemned unheard and justice should not only be done but should be manifestly done to the satisfaction of all including one who is later condemned. .Allah did not destroy any people except after forewarning them through His Prophet. Noah administered the warning to them in clear language(7 : 59, II : 25) "1 fear for you-the chastisement of a grievous day". He warned them till they themselves asked for the punishment. (11 : 32) "O Noah ! Thou hast disputed with us and multiplied disputation with us ; now bring upon us that wherewith thou threatenest us, if thou «ft of the truthful ones". Hud was sent as an apostle on Aad, Salih was sent to Thamoodn. Lot was sent also as apostle of Allah, Shuaib was sent to the people of Madyan. Each of them warned his nation of chastisement but retribution was sent to destroy them when they asked for it. This is the common story of warnings going unheeded and of mocking and challenging invocations being made for award of retribution. « The people of Pharaoh received several warnings in the form of draught, diminution of fruits, flood, locusts, vermens, frogs and blood but they were arrogant. And when the terror fell on them'they cried : O Moses ! pray for us unto the Lord, because He bath a covenant with thee. If thou removest the terror from us. We varily will trust ihee and will let the children of Jsrael go with thee" (7:134). But each time they broke their promise and were ultimately drowned, These cases furnish fine examples of the same rwo principles. Justice is the corner stone of Islamic society <%llah has ordained comlete impartiality in doing justice and-in fact has extended the scope of justice to all matters including Haqq-al-lbad but impartiality is stressed as the quality of a person called upon to decide dispute. The Holy Prophet also laid down full emphasis on impartiality and justice being done mani­ festly. He laid down rules of conduct for a judge. It is related from Hazrat Ali that a litigant appeared before him. He enquired from him whether he was a party (to some case). He replied in the affirmative. He (Hazrat Ali) ordered him to remove himself from his presence since he had heard the Prophet saying : "Do not address a party unless alongwith him is also present the opposite party," Abdullah-bin-Zubair reported that the Messenger of Allah gave decision that the,two disputants would sit before the Judge. Another tradition is that a person called upon to decide dispute bet­ ween two parties should act impartiatlly as a judge. He should maintain parity in matter of seating them and talking to them. He should not raise his voice on one unless he raises it on another. It is one of the essentials of bis conduct that the Qazi shall seat both the parties in his presence as equals and shall not seat them in a manner - that one may sit towards his right and the other towards his left because in such seating will be some sense of nearness at least for one in so far as the person on the right is considered superior to the person on the left. It is stated Hazrat Umar and Ubay Bin Kaab appeared in some dispute as parties before Zaid bin Sabit who presented a pillow to Hazrat Umar, On this Hazrat Umar said this is your first act of cruelty and he sat before him. Another esseutial is thai the Qazl will treat both the parties equally, talk to them as jhey are equal before him, not incline towards one party

nor point out to ojfily one person nor talk loudly to any one party nor talk in a language" which the other does not follow nor meet one party at his house nor accept the invitation to dinner from any because such . conduct creates suspicion in the mind of other party and the Qazi loses his m good reputation. Similarly the Qazi should not ask any party for clarification of his arguments nor should talk to him in a manner which may cause hurt to the other party. For example if some body wants to make an admission the Qazi may advise him to deuy or if he wants to take oath the Qazi may stop him from swearing or if he does not want to take oath the Qazi may persnade him to take or he may stop any witness from appearing in evidence or advise him not to be present or the Qazi may ask one party only to speak or any such conduct which may possible hurt the other party since it the duty of the Qazi to keep a balance between them on the basis of equity and justice. The Holy Prophet directed that no Judge should decide a case in anger. The person of this order is that the vehemence of rage may deprive him of the qualities of balance and coolness which are necessary for maintaining impartiality. This obviously is a case of technical bias. On the same principle various restrictions were laid down by the jurists, directing a Judge not to give judgment where there be possibility a apprehension of lots of fair ness or impartiality for example when his judicial faculties may be affected, however slight be his craving for food or water. These principles laid down in the Holy Quran and the Sunnah and later developed in Fiqh by our early Jurists have never been improved. They on the one hand stress upon the necessity of complete impartiality in a Judge and on the other hand are meant to fulfil the demands of the first two principles of natural justice. The Sharta also provides specifically against the principles of bias the third principle which in fact flows out of the first two principles. This is clear from Verse 26 of Chapter 38 bu T will also reproduce Verses 48 and 49 of Chapter 5 : 38: 26, "O David. Lo We have set theft as Viceroy in the earth ; there­ fore judge aright between mankind, and follow not desire that it beguile thee from the way of Allah ..................... 5:48. "And unto thee have We revealed the Scripture with the truth, con­ firming whatever Scripture was before it, and a watcher over it. So judge between them by that which Allah hath revealed, and follow not their desires away from the truth which hath come unto thee.. ................................................................................ " 5:49 "So judge between them by that which Allah hath revealed, and follow not their desires, but beware of them lest they seduce thee from some part of that which Allah hath revealed unto thee These are prohibitions against following one's own desire which may beguile a Judge from the way of Allah or following the desirn of others may seduce him from the true path. The order not to follow desire inheres in it the command to shun bias completely. The traditions of th«^ Holy Prophet (PBUH) have already been commerited upon. On these principles the early Jurists founded the principle .1 ........................................................................................................ of bias which surprisingly is in the same language as used in modern terminology. The modern principle is that no on; should be a judge in bis own cause, Now compare the language of Shafei. "Shafei said: Anyone who decides a matter for himself (in his own cause), or for .bis father, or for his son or for one whose evidence is inadmissible ; his decision is void," Adah ul Qazi by (vfawardi Vol. 2 p. 413) Mawardi developes this theme by saying : "His order for 7~ himself in his own cause) is void, since he is a witness for himself although he is appointed to decide about rights of others and not about his own right. " (IbU) The language "decicion for himself" is thesame as being Judge in one's cause. In fact the language used by Shafei and followed by Marwadi •~J » |»£»L means nothing but one'who judges in bis own cause'. Such judgments are declared void and of no legal effect. It is in Mejell It is a condition that the judge's ancestor, and descendant or wife, aud his partner in property in respect of which judgment is given, and his private servant, and the man who lives on his food, is not to be the person in whose favour he gives judgment. Therefore for him a judge V, after hearing the action of one of these cannot give judgment for him" The principle of bias is thus specifically laid down in Sharfa. An instance of possibility of bias can be detected from the tradition that acceptance of gift by Officers amounts to Khalyanat (dishonesty or betrayal). In fact it may make him a judge in his own cause and cripple bis quality of justice and fairness. Hazrat Umar issued an order against acceptance of gift by any one holding office, since it is a type of bribe. He issued this order after deciding a judicial matter. The case is well known that a person who used to bring meat of the thighs of sheep or goats (This is according to Jaozi but others say it is Camel) appeared as litigant and repeated before Hazrat Umar the necessity of deciding the matter in such an unerring manner as the flesh of the animal can be separated from his thigh bone. Hazrat Umar realised that the man was referring to the gifts given by him. He decided the matter against him and prohibited taking or acceptance of gifts by office holders. He extended the principle of bias to administrative matter also. Hit own son Abdullah bin Umar who participated in the warofGalola sold the share of booty for a sum of 40,000 dirham which ie brought to his father and explained to him the source of that money bur Hazrat Umar was not satisfied since he was of the view that Abdullah might have been given preference in the division of booty on account of his being the son of Caliph. On the other hand he showed to his son the benefit of investment in trade. According to Ibn-e-Umar once he sought permission of his father to participate in Jehad. He said that he was afraid that he (Abdullah) would break the Sharta limits. He illustrated this by saying that if there were some beautiful girls in the booty and Ibn-e-Umar tried to purchase one, it is possible that he may be allowed to purchase her on the ground of his being the son of the Caliph. Hazrat Umar received some musk and ambergris from Behrain. He wished that some woman had weighed the goods in equal shares for Muslims. His wife Atiqa offered to carry on the wightment but he did not allaw her to do so on the ground that he apprehended that while weighing she might rub her fingers on her temple or neck and thus increase (<;n-knowingly) his share in the goods. . These orders do not furnith only examples of ideal personal integrity but inherent therein is a principle of law that no one should be entrusted with administrative office even if there be a likelihood or apprehension of only technical bias though the same be activated by the general tendency on the part of others to treat the son or wife of a person in authority with some preference or partiality over those who are not placed in such a for­ tunate position. Such an appointment may also impinge upon the principle of the requirement of jnstice being manifestly done. These principles have been applied during the period of the rightful Caliphs not only to judicial matters but also to executive and administra­ tion matters. They have been applied even to the employment of officers of the Government. In order that these principles fnay not be violated, they should not only be made the basis of legislation bu,t should also be made a part of it. We CdB arrive at the same conclusion by reference to the principle of Adi. While exercising power of legislation the legislator should not lose (sight of a principle which is deeply ingrained in Islam. It is the principle Jof Adi., (justice). In fact it is one of the fundamentals of Islam. It is , ojone of the duties of a Muslim to act justly and equitably and to be jimpartial in its dealings. (Q. 5 : 8 :.Q6 ; 153 ; Q. 2 : 190, 194). This duty (becomes more onerous for those who are charged with the function of Government. They must keep the scales between man and man in a State of counter-balance. The Holy Prophet who was a iiead of tie State, a 'legislator, a Qazi. a General, a teacher was directed : Q. 5 : 22. But if thou judgest, judge between them with equity. Lol Allah loveth the just. The reason of revelation may be a specific event but this does not affect the generality of the order because 'Allah loveth the just'. There are other verses which prove the generality of the injunction e.g. Q. 6: 153. "And if ye give your Word, do justice th«reunto, even though it be (against) a kinsman, and fulfil the Covenant of Allah. This He Commandeth you Q. 16 : 90 "Lo! Allah enjoineth justice and kindness ............... This injunction was equally applicable whether the Holy Prophet acted as head of the State or as legislator or in any other capacity. The lav are also required to be just and there is a presumption that all laws in the Quran and the Sunnah of the Prophet are just It is the duty of the] legislator to maintain the balance and frame just laws for the Vmmah. Now what is justice. It does not in can only that which keeps the balance. The concept of justice inheres in it the sense of confidence which must be created among the people. The balance must be seen, noticed, appreciated and approved by- those who are likely to be affected thereby. This is what is meant by the maxim that justice should not only be done but should be seen to have bew done. The legislative process is not free from this rule. The legislator may be a body—a parliament or a legislative assembly—or he may be an individual in either case he is a representative of the nation. The posh ion of .an Amir or Imam or his Sfioora in Islam is not different. None can deny his representative character. If he follows the divine message in the Quran or as otherwise transmitted by the Prophet his mission will be the establish­ ment of Sal at (prayed) Zakat. Fasting and Haj. Hadood ofAllah, and requiring people to'do good and refrain from evil. His main aim will be the Service of people and to act for their welfare, and to eliminate from their midst all forms of mischief. What else will he be if not the repre­ sentative of the people who else but their avowed servant can think and act devotedly for the people. This representative character in Islam enhances the burden of the legislator not only to make laws for the public weal and elimination of ' mischief (•) but ,%,o to make perceptible to them the abovp object of law. The good among the people may feel satisfied but the object should be that even those with a social stigma who feel irked by the authority should not have a feeling that they may not merely be judged bqt may be victimized. It is therefore necessary that the spirit of law may bis reflected in the language in which it is couched, so that all misunderstanding of the reader may be allayed. \ Law is not a mechanical process. Every word used in it has to bel given a meaning. It is therefore the result of considerable thinking. Thtp" best drafting minds combine to weigh every word which is used in the draft. Legal experts consider their signicfiance. Where they are passed by a parliament or congress, each word, each phrase, each sentence therein undergoes operation through discussion, argument, thinking erasure, omis­ sion, or amendment. In order to attain the objective of inculcating public confidence in it the Bill is published and public opinion on it is invited. Any vagueness in it cannot consequently be countenanced. Will it be reasonable to provide for an appeal without providing for the essentials of the principle of natural justice in it leaving it to the good sense of those who implement it to avoid all lacuna or fill up all blanks scrupulously and meticulously. In such a case the taste of just treatment will be only for a few who are parties to a case. Others are prevented from being enlightened about the matter and thus compelled to remain under a misunderstanding. However trivial be the degree of damage to the Legislator's prestige it should be avoided and the legislator should try to inculcate confidence amongst all the members of the Ummah. In the long run it never augures well for any Government to remain indifferent to popular feelings. The Quran enjoins the Muslims to give priority in their obedience to Allah and the Holy Prophet and then obey Aul-ul-amr d^' Jj') the head of the Government or the person in power. It is however of utmost importance that the Aulul Amr should act and behave in such a manner that people may place their unstinted trust in him, It is then that he can com­ mand their fealty and real obedience which must remain untampercd by doubt. The laws, ordinances and decrees promulgated by Aulul Amr should possess the quality of inspiring full confidence in the public. This is another ground for incorporating the principles of natural justice as far as possible in law. It is said that there is no injunction of the Quran or any Sunnah about appeal. This is not correct. There is an important hadis in this respect. It has been related that two persons came to the Prophet and one of them said about the other that his cow killed his donkey. The Prophet ordered Hazrat Abu Bakr to decide between them. Abu Bakr decided that animals do not incur any liability (for their acts). The Prophet then ordered Hazrat Umar to decide between them. He also decided like Hazrat Abu Bakar. Then the Prophet ordered Hazrat Ali to decide between them. Hazrat Ali enquired "Were both the Cow and the donkey unle­ ttered 1" They said, "No". He asked "Were the Caw tied and the donkey free ? They said 'No". He then said, "was the donkey tied and the Cow free?" They said, "Yes". So he said, "The owner of Cow is liable." (Abadul Qazi by Mawardi, Vol. II page 388, Printed Baghdad, 1972). From this Hadis it ismply clear that the Holy Prophet was acting as an appellate court against the judgment of each of the companions. Twice he remanded the case and approved of the judgment announced on the third occasion. Throughout these proceedings the parties had been pre- •ent before him. The Kadis justifies appellate jurisdiction, the hearing of both the parties as well as the procedure of remand of a matter to a Judge other than the one who decided it earlier. Such appeals were Sled against the orders of the Qazi before the ji Amir, Sultan, or Calipb, by whatever name the head of the Government y~ be called. Another instance of Murafaa or appeal is the application of j a party aggrieved against the order of the Qazi to Nazirul JVlazalim who had the power to digress even from the principle of Qaza, Inter-alia in regard to the qualifications or number of witnesses and could take all , possible actions to find out the truth and to give relief if possible. This' could not be done by him without hearing the parties the petitioner as! I well as the person petitioned against. The principle of hearing the appellant/ must be therefore incorporated whenever there be a provision of appeal. I It may be emphasized that in cases of hearing of an appeal by Court it may not be strictly necessary to make an express provision about hearing since the Courts of law never decide matters without hearing and this is well known to everybody. But if the appeal be to an authority, ot tribunal (and not courts) the fear of arbitrariness does linger in the public V mind. This must be excluded by express provision in this behalf. We enquired from the learned counsel for the Federal Government whether there were any rules prescribed for the manner of disposal of the appeal. After consulting the relevant department he gave the following information which throws lurid light on the implementation of this law. "Mr. Z. H. Siddiqi, Deputy Director of the Pakistan Standards Institutions, briefed me on the subject. The Pakistan Standarad Institution, established under the Ordinance has two Divisions Standardization Division and Certification Marks Division. The Standardization Division consists of six Sectional Com­ mittees i. e. Mechanical ; Electro-Technical, Building Engineering ; Textile ; Chemical-Food-Agriculture, and Metrication. This Standar­ dization Division prescribes and lays down standards for articles and processes, which are then enforced by the Enforcement Wing of the Certification Marks Division. The Pakistan Standards Institution has laid down 1500 Standards for articles and processes. Most of the Standards conform to international standards, however certtain Stand­ ards have been modified keeping in view the local conditions. Out of these 1 SOO Standards only 51 for export items and six for items of domestic consumption are being enforced. Where any article conforms to the Standard prescribed for that article, its manufacturer is entitled to a licence under the Ordinance, and the matter relating to grant of licence to such manufacturer is amicably settled at the Institution. The institution steps in to interfere mostly in case where complaints from abroad are received regarding the standard of exported articles. Then the exporter is directed to bring his goods to desired standards or face suspension or cancellation of Licence. Appeals under Section 13 of . the Ordinance are heard by the Secretary, Ministry of Industries and the aggrieved party is given full opportunity of being heard. There are not man appeals and the matter is sorted out at this level. The Deputy Director of Institution informed me that he did not know of a single instance where the matter was taken to the Court . There is no reference to any rule. The Secretary must be giving the hearing on account of the law laid down by the Supreme Court which is in accordance with Sharia. There is,however,no reason why the principle of hearing both the parties should not be incorporated in the law. Iti necessary that Section 13 (3) be amended to incorpopate the above principle. (/) The Forest Laws (Amendment) Ordinance X of 1962 The Ordinance only amends the Forest Act of 1927 and N, W. F. P. Hazara Forest Act. 1939 and validates certain duties levied and collected before the promulgation of the Ordinance, The Ordinance it not open to any objection in Sharla. (It) The Sports (Development and Control) Ordinance. XVI of 1962 The name of the Ordinance itself reveals its objective which is secured by the establishment of the Board as a Body Corporate. Section 4 provides that the name, constitution, powers and functions of a Board shall be such as may be determined by the Federal Government. The Ordinance is not open to any Sharia objection. (Hi) The Iqbal Academy Ordinance XXVI of 1962 The Ordinance sets up and constitutes an Academy known as the Iqbal Academy as a body corporate to promote the study and understand­ ing of the works of Allama Muhammad Iqbal. The Ordinance is not open to any objection. (Ml) The Copyright Ordinance XXXIV of 1962 This Ordinance amends and cosolidates the law relating to cop­ yright of literary, dramatic, musical, architectural and aritistie works and provides an incentive, to literatures, artists and architects etc. Tbe only question in this case which required consideration was whether copyright is property. This question has already been considered by this Court in Re-Trade Mark Act 1940 in which after detailed discussion it was held to be a property. The Ordinance otherwise saves literary and dramatic books works on architect and art etc from encroachment of others. There is nothing wrong in it. (liv) The Provincial Industrial Development Corporation ( West Pakistan ) Ordinance No. XXXVIII of 1962 The Ordinance establishes an industrial development corporation, the object of which is to industrialise the country. There is nothing in this- Ordinance which may be repugnant to Sharia. (fr) The Provincial Small Cause Courts (Amendment) Ordinance U of 1964 This Ordinance provides summary .procedure for distress warrants against the property of persons who are defaulters in payment of rent payable for use of premises within the Court's jurisdiction. It also provides for the power of the District Court to withdraw and transfer suits tried by a Small Cause Court . Some other amendments have been made in the Provincial Small Couse Court Act. The Ordinance is unexceptionable. (lit) The Disturbed Areas (Special Powers) Ordinance LIVofl962 The Ordinance was promulgated to confer certain special powers upon officers in respect of disturbed areas declared so by the Provincial Governments for thpurpose of this Ordinance. It provides in Section 3 that if in the opinion of any Magistrate, or any police officer in charge of a police party, it is necessary for the maintenance of public order so to do, he may, after giving such warning as may be appropriate in the circumstances of the case, fire upon, or otherwise use force against, any person who is acting in contravention of any law or order for the time being in force in a disturbed area prohibiting the assembly of five or more persons, or the carrying of weapons, or of things capable of being used as weapons. It shall be lawful for any Magistrate or police officer exercising powers under sub-section (1) so to fire or use force as to cause death, and for any person employed in the use of such force to cause death of the person against whom he is aurhorised to use force. This power can also be exercised by any officer of the armed forces or of the civil armed forces .(Section 4). The definition of disturbed areas in clause (a! of Section,2 is vague and does not lay down tbe grounds or basic principle for declaration by the Provincial Government of any area a<? disturbed area. Such wide powers may be misused. Power has been given to the Magistrate or any Police Officer, Incharge of the Police Party, office of the armed forces or any officer of tbe civil armed forces in an area declared as disturbed area to use force as to cause death of any person. There should be provision for . enquiry about the correct use of force and in case of an answer in tbe negative atleast for the payment of diyat to the heirs of the deceased person. This amendment is necessary and shall be made by the President. (Mi) The Apprenticeship Ordinance LVl of 1962 The Ordinance makes provisions for promoting, developing and regulating systematic apprenticeship programmes in the industries and for securing certain minimum standards of skill. A person employing 5 or more persons in any apprenticeable trade as dcfiefed irr Section 2 (b) of the Ordinance is bound to introduce and operate an apprenticeship programme amongst tbe workers in his undertakings and get it registered with the competent authority. He is bour to train apprentices in the proportion of a minimum of twenty percent .. the total number of persons employed in apprenticeable traeds and is responsible to ensure that an apprentice receives within the normal working hours related theoretical instruction to the extent of atleast twenty percent of the total working hours. The obligations of apprentices have also been provided for tbe object of the Ordinance, is to prepare skilled workers for Jhe industrial undertakings This is praise-worthy object and no fault can <be found in any provision of this Ordinance. (hiti) Tht Jute Ordinance LXXIV of 1962 The Ordinance consolidates and amends the law relating to trade in jute and jute manufactures in order to provide for measures for the regulation and promotion of internal and international trade therein, for the licensing of dealers in jute and occupiers of jute godowns and kutcha and pucca jute presses, for the collection of statistics in respect of the Jute trade and industry, and for the levying of a cess on jute. Section 6 deals with the licensing as well as with the suspension or cancellation of licences. Section 7 provides that any parson aggrieved by an order under section 6 may appeal to the prescribed authority which shall be presented in such manner and shall be accompanied by such fee as may be prescribed. There is no provision for hearing of the appellant which as discussed above is necessary, Mr. Iftikhar Hussain Cbaudhary, learned counsel for the Federal Government after seeking instructions from the relevant Department wrote as follows : "The Ministry of Commerce, Government of Pakistan has informed me that the Jute Ordinance is, virtually a redundant piece of legislation. Domestically grown Jute beinginsufficient for thcjneeds of Country, Jute. is being imported as raw material and as such there is no need to regulate the internal or international trade of this commodity. There is no Jute Board in existence and none of the provisions of this Ordinance are invoked now. Provisons of Section 7 of the Ordinance as such need no change." We do not agree with this submission. If the statute is rendered (redundant it should be repealed, But for so long as it is an existing law ntbe Court is duty bound to bring it in conformity with Islam. Such provision Ishall be added to Section 7. There is no other defect in the Ordinance. (lix) The Associated Press of Pakistan (Taking Over) Ordinance XX of 1961 Mr. Tajuddin who owned this organization has filed objection but no assistance in regard to the question of repugnancy with the holy Quran or the Sunnah of the Holy Prophet is deducible from it. The Associated Press of Pakistan was taken over in 1961 and this is a matter which is past and closed. The Associated Press stood dissolved for the purpose of Companies Act by this Ordinance and all its assets, rights, powers, authorities, priviliges etc stand transferred to and vest in the Government. All the debts and liabilities incurree, all obligations undertaken, all contracts entered into, and all agreements made by or with the Associated Press stand transferred to the Government and are deemed to have been incurred, undertaken, entered into or made, by or with, the Federal Government. Even if this Ordinance be directed to be repealed the question is Whether the dissolution of the company would in any way be effected now after about 22 yearsThe answer is obviously in the negative. S. 5 Provides 3.—(1) The Federal Government may, notwithstanding anything ~ contained in any other law for the time being in force, or in any trust or wakf, or in and deed or other instrument, by notification in the official Gazette, take over the entire undertaking of the Associated Press on such date as may be specified in the notification. (2) On the date specified in the notification under sub-section (1), (a) the Associated Press shall stand dissolved for the purposes of the Companies Act, 1913 ; (b) all assets, rights, powers, authorities and privileges, all properly, movable and immovable, cash and bank balance, reserve funds, investments and all otherinterests and rights in, or arising out of, such property, of the Associated Press, shall stand transferred to, and vest in, the Federal Government ; (c) all debts and liabilities incurred, all obligations undertaken, all contracts entered into, and all agreements made by or with the Associated Press, shall stand ansferred to, and be deemed to have been incurred, undertaken, entered into or made, by or with, the Federal Government ; (</) any sum payable to, or recoverable by, the Associated Press shall be deemed to be payable to, or recoverable by the Federal Government ; (0) the members of the Associated Press shall be liable to contribute to the assets thereof for payment of its debts and liabilities to the extent to which they would have been liable had the Associated Press been wound up under the Companies Act, 1913 ; (/) all suits and other lagal proceedings instituted by or against the Associated Press before the said date shall be deemed to have been instituted by or against the Federal Government and may be continued or proceeded with accordingly ; (g) any reference to the Associated Press in any law other than this Ordinance, or in any rule, regulation, order or notification or in any contract, deed or other document shall, except where the context otherwise, requires or the Federal Government otherwise directs be construed as reference to the Federal Government. It appears from the preamble that the undertaking was taken over to ensure free and sufficient flow of news to the people and to place the undertaking on a stable basis It further appears from Section S that the functional affairs of the undertaking were in a bad state and had to be put on a sound footing and it appears that for this reason the menbers of the company were held liable to contribute to the assets thereof for payment of its debt and liabilities to the extent to which they would have been liable had the Company not been wound up. In these circumstances it it not possible for this dissolved company tobe restored to its original position. The Ordinance cannot be declared tobe repugnant to Sharia since it will be of no use. According to the Con­ stitution only those laws can be held repugnant which legally exist. After dissolution of a company it cannot be restored to its original position. Such law cannot be effectively declared to be repugnant. (/) The Port Authorities Lands and Buildings (Recovery of Possession) Ordinance IX of 1962 The learned counsel for the Federal Goverment, Mr. Iftikhar Hussain Chaudhry wes asked whether the rules provided for hearing an appeal filed before the District Magistrate or the Additional District, Magistrate under section S of the Ordinance. . In his letter No.4/PS/83 dated the 28th February, 1983, he explained the object of the Act and the procedure adopted by the Board of Trustees of the Karachi Port Trust and its authorised officer. As about Section 5 he writer that it stands amended and now the District Judge, a Court is the appellate authority. Ther$ can be no objection to the object of the Ordinance which is to dispossess fa) persons whose possession of the Port Trust Property is either ab tnitio unautohrised or has become unauthorised after the termination of his lease, and (b) the lessee of a lessor. The power to pass an order of dispossession is vested in theiAuthorised . officer who has to make inquiries to give to the person proceeded against an opportunity ofbeing heard. Originally the District Magistrate was made an appellate authority. Later by Act VII of 1968 (section 2) the Additional District Magistrate was also vested with (his power. The words 'District Judge or Additional District Judge were substituted for the words "District Magistrate" by the Federal Laws (Revision and Declaration) Ordinance, 1981 (Ordinance . XXVII of 1981). It is, however, strange that the words "or Additional District Magistrate" were not deleted or omitted. This may be an error JL on the part of those who drafted the Ordinance of 1981. The result is ^ that the i appellate Auuioity now is -the District Judge or the Additional District Judge or the Additional District Magistiate. It is stated by the learned counsel that both parties are given full hearing before the District Judge, However, there is no provision for bearing by the appellate Court or Authority either in Section S or in the A rules. This laruna should be removed by making specific provision in Section 5 of the ordinance about affording an opportunity of being beard to both parties. ORDER OF THE COURT (/) The Agricultural Census Act, 1956. Section 5 (3) shall be amended in order to provide that the compensa­ tion referred to therein shall be equal to the loss or damage suffered by jjlthe owner or other person and the assessment shall be carried out in such "manner as the Federal Government may prescribe. (2) The Capital Development Authority Ordinance. I960. Section 2 (K) of this Ordinance be omitted and after the words ^'Irnarket value of the land' in Section 30 (1) of the above Ordinance, the (words 'as on the date of order under Section 25 be added, (3) Pakistan Standard Institution (Certification Marks) Ordinance, 1961 In Section 13 (3) of the Ordinance the words "shall dispose of th appeal after giving the appellant an opportunity of being heard and shall' be added after the words 'The Federal Government and before the word •shall'. (4) The Disturbed Areas (Special Powers) Ordinance LIV of 1962. It shall be provided in the Ordinance that inquiry shall be conducted whether the firing or use of force was justified. It should also be prrovided that in case the firing or in e of force is held unjustified the perons affected or their heris wilt be entitled to Diyat, Ursb or Zaman which shall be fixed according to the requirements of Sharia as are laid down in the traditions of the Holy Prophet or in their analogy. (5) The Jute Ordinance LXX1V of 1962 in Section 7 of the Ordinance provision shall be added that theU appeal shall be decided after giving an opportunity of being heard to ihc^ appellant: (6) The Port Authoirtiex Lands and Buildings (Recovery of Possession) Ordinance IX of 1962. In Section 5 miy he added words 10 make ii incumbent upon tlx Appellate Authority or Court to decide an appeal after affording aiG opportunity of being heard to both the parties. These amendments shall be carried oui by the 31st December, 1983. Before parting with these cases we would like to place on record out sense of gratitude for Mr. Abdul Karim Langah, Civil Judge, who has taken pains to give his comments en most of the above laws in the light of Sharia. (TQM) Order accordingly.

P L J 1983 FSC 337 P L J 1983 FSC 337 (Original Jurisdiction) Present : aftab hussain, C.J., ali hussain qazilbash, ch. muhammad siddiq & malik ghulam ali, JJ Jnre: The Civil Servants Act, 1973 (Act LXXI of 1973) Shariat smc Motu No. 263/A/83, decided on 26-9-1983. (i) Civil Servants Act (LXXI of 1973)— —S. 13 (ii) read with Constitution of Pakistan, 1973—Art. 203-D— Persons completing 25 years service qualifying pension or other re­ tirement benefits—Premature retirement of—Provisions regarding —Repugnancy to injunctions of Islam—#«/</: Provisions of S. 13 (ii) providing for premature retirement of persons completing 25 year service being not only in violation of principle of equality before law and equal protection of law but having also given arbitrary power to competent authority (to remove such employees on basis of personal likes or dislikes), same (being repugnant to injunctions of Islam) to be repealed (by 29th of February. 1984)— [P W]H& J (II) Ova S«raate Act (LXXI of 1973)— —-S. 13(i) read with Constitution of Pakistan, 1973—An. 203-D— Premature retirement—Provisions regarding—Repugnancy to injunctions of Islam— Held: Seeking employment for citizens of country being one of duties of Government, arbitrary removal from service to be repugnant to Sharta — Held further : One of reasons for afford­ ing protection and safeguard against premature retirement, removal or dismissal being that all Government Servants may act according to law without any fear or favour, withdrawal of such protection to amount to virtually withdrawing from them duty to act according to law and conscience and to make them to bend to will of Chief Executive—Provisions of S. 13(i) being repugnant to Quranic prin­ ciple of equality before law and equal protection of law, same ordered to be repealed by 29th of February, 1984. {P 343)64 / <iii) Civil Seronts Act (LXXI of 1973)—

S. 13 (i) read with Constitution of Pakistan. 1973—Art. 2034>— Government servant—Retirement from service— Hld: Power givea to competent authority under S. I3(i) to remove Government servant merely on basis of personal likes or dislikes to be too arbitrary test to deprive such servant of means of his livelihood and to deprive nation of his talent and experience. [Pp. 342 ft 343JF <iv) Civil Servants Act (LXXI of 1973)—

-S. 11(3) read with Constitution of Pakistan, 1973—Art. 203-D— Temporary Government Servants — Termiaation of — Held: Tem­ porary Government servants or persons appointed on ad hoc basis or on probation to almost fall in same category and by nature of their service not to be given protection available to permanent employees —Held further: In case of termination of service of such employee due to any charge, provisions about disciplinary action to apply to him. [P 340]£ PLJ 1975 SC 1 &PLD 1956 SC 331 rtf. (?) Islamic Law & Jurisprudence—

Government servants—Protection in service of— Held —Any pro­ tection in service afforded to Government Servants in respect of their tenure and other terms and conditions to be valid and in accordance with spirit of Sharta— Constitution of Pakistan, 1973— Art. 203-D. (P 339JX (»i) Islamic Law & Jurisprudence—

Equality before law—Concept of—Head of State—Immunity from prosecution—Claim of— Held: There being no distinction between citizen and head of State in respect of equality before law. no im­munity from prosecution or from appearance in Court during tenure of office to be claimed by such head of State — Constitution ol Pakistan , 1973—Art/203-D. fP 342JC <TU) Islamic Law ft J

Equality before law—Principle of—Held: Equality before law and equal protection of law being main principle inherent in Islamic Law not to be ignored, [P 342]£ (rW) bfaMfe Law ft Jurisprudence - —Law — Equal protection of — Held : No juridical right to be re­ served for any particular group on consideration of wealth, purity of blood, caste or colour and politically every Muslim being member of same Umma not to be denied any right—Constitution of Pakistan, 1973—Art.203-D. [P.342}/> Mr. Ijnkhar Hussain Chaudhary, Advocate for the Federal Government. Date of hearing: 18-5-1983. judgment Aftab fiMsata, Chief Justice.—The Civil Servants Act lays down the Law for appointment in the service of Pakistan and for terms and condi­ tions of the employees including provisions about tenure of office (Sec­ tion 4), Appointments (Section 5), Probation (Section 6), Confirmation (Section 7), Seniority (Section 8), Promotion (Section 9), Termination of Service (Section 11), Reversion (Section 12), Retirement (Section 13), Dis­ciplinary action and penalties (Section 16), Provident fund (Section 20). Benevolent Fund and Group Insurance (Section 21), Right of appeal (Section 22) etc. The fotttjtting traditions lay down the principle of good treatment of one's semtatas'well as the conduct of the servant :— "They (your bond-men or servants) are your brothers. God has as­ signed them to your control. So whoever has his brother under his control shall feed him from what he himself partakes and clothe him with what he himself wears and shall not impose on him a task harder than him (he can himself perform). If you impose such work on him. help him also in doing it." [Bukhari (Urdu translation) Volume I page 98] "Feed your bondmen with what you eat and ciothe them with what you clothe yourself (Ibne Saad Seerat ul Nabf by Sbibli Nomani Vol. II page 156). Any protection in service afforded to Government servants in respec of their tenure and other terms and conditions would be valid and accordance with the spirit of sharia. 'Generally speaking, the Law is not repugnant to the Quran and Sunnah except in Section 13. An objection was raised by Hafiz Abdur Rashid Malik in regard to Section 11 which is as follows :— "(1) The services of a Civil Servant may be terminated without notice:— , (i) daring the initial or extended period of his probation : Provided that, where such civil servant is appointed by promotion on probation or, as the case may be, is transferred from one grade, cadre or post to another grade, cadre or post, his service shall not be so terminated so long as he holds a lien against his former post in such grade, cadre or post, as the case may be ; (ii) on the expiry of the initial or ment ; or extended period of his employ- (iii) if the appointment is made ad-hoc terminable on the appointment of a person on the recommendation of the selection authority, on the appointment of such person. (2) Where, on the abolition of a post or reduction in the number of posts in a cadre or grade, the services of a civil servant are required to be terminated, the person whose services are terminated shall ordinarily be he one who is the most junior in such cadre or grade. (3) Notwithstanding the provisions of sub-section (1), but subject to the provisions of sub-section (2), the service of a civil servant in temporary employment or appointed ad-hoc shall be liable to termination on fourteen days' notice or pay in lieu thereof." The objection is that sub-section (3) is ultra vires of the principles of sharta. We do not find ny justification for this objection, since temporary Government ervants or persons appointed on ah-hoc basis or on probation almost fall in the same category and by the very nature of their service they cannot be given rotection available to a permanent employee. Such a person is still under serveillance whether in case of appointment he can prove to be efficient and atisfactory. The temporary appointment requires fl to be terminated on various grounds including that the service of such employee may not be required at all, so is the case of ad-hoc appointment. The provision of notice protects and safeguards the interest of a Govern­ment servant and he has the opportunity to seek employment elsewhere during the period of notice. In case of the termination of his service due to any charge, the provisions about disciplinary action will apply to him, since it would not be a case of termination but of dismissal or removal as held by Supreme Court in case of Noor-ul-Hassan (PLD 1956 SC page 331). Also see Muhammad SiMiq Javatd Ch. v. The Government of West Pakistan (PLD 1975 SC 1). The other objection follows : is about Section 13 (i). The Section is as "13. A Civil Servant shall retire from service ;— (i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post on such date as the competent authority may, in the public interest, direct." A distinction has been made between persons holding post of Additional Secretary to the Federal Government or any equivalent or higher post on the one hand and person holding other post on the other hand. Prior to the enforcement of this law all Government Officers including persons holding posts of Additional Secretaries or equivalent or higher posts enjoyed the same safeguards and protections (See Articles 240 and 241 of the Government of India Act, 1935, Article 177 and 178 of the Constitution of 1962 and Articles 220 and 221 of the Interim Constitution of 1972). One of the principles which distinguishes Islam is the principle equality before Law and equal protection of Law inherent in it. of This principle in deducible is no uncertain terms irorn the Holy Quran and the Sun nab. In fact Islam has given the principle of "ol»l—•" to a world in which the class and group conflicts reigned supreme. The test of equality lies in each Muslim individual being nominated - in the Quran as KMlafat Ullah. (Q. 6 : 165; Q: 7 : 69 ; Q. 7 : 74). It is interesting to note that the first Caliph, Hazrat Abu Bakr declined to accept the title of KMlafat Ullah presumably because each individual Muslim is the holder of that title. He adopted the title of Khilafat-i-Ratal Allah, Allah says "O mankind, he have created you from a male and a female" which means that all human beings are brothers inter-se irrespective of any distinction of colour, race or nationality. They are the progeny of the same parents. The outward differences of colour, race, tribes, and nationality are no more than references for mutual introduction and recognition. The sole criterion for superiority of one over the others is piety, nobility and the quality of being God-fearing. Q. 49:13 "O mankind ! We have created you from a male and a female, and have made you nations and tribes that yon may know one another. Lo ! the noblest of you, in the sight or Allah, is the best in conduct. Lo ! Allah, is the best in conduct. Lo ! Allah is Knower, Aware." This brotherhood between man and man is implied in the following verses:— Q. 4: 1 'O mankind! be careful of your duty to your Lord Who created you from a single sou! and from it created its mate and from them twain hath spread abroad a multitude of men and women In Q. 49 : 10 it is specifically stated that "The believers are naught else than brothers. Therefore make peace between your brether.i and observe your duty to Allah that haptly ye may obtain mercy." There are several traditions of the Holy Prophet in support of this proposition. The prophet said tha ^Wl (people are like the teeth of comb) (Address at the last Haj or Hajjatulwldaa). This simile is very apt since if the teeth of the comb be of different sizes or be unequal the hair cannot be combed but the head shall be injured, The simile thus exemplifies the effect of inequality too. In the same address the prophet said "No Arab has any superiority or excellence over a non-Arab and no red-coloured man has any superiority or excellence over any black coloured man, save in respect of piety and fear of Allah." In Sahlh Muslim this Hadees is reported in the following words :— "No Arab hat any superiority over a non-Arab, nor any non-Arab over an Arab nor any white man over a black man, nor a black man over a white man, save iu respect of piety and piety of Allah." This fraternity and equality is not only a matter of form but is indeed a matter of substance. It goes to the extent of equality before law aad equal protection of law. In respect of equality before law Skaria doc not make any distinction between a citizen and a bead of the State. The bead of the State cannot claim any immunity from prosecution or from appearance in Court during the tenure of his office. There is no discrimi­nation in the administration of justice between man and man. , Politically every Muslim being the member of the same Ummuh he cannot be dented any right, nor any juridical right can be reserved for any particular group on consideration of wealth, purity of blood, caste or colour. The best example of equality before law and equal treatment and pro-tection of law is furnished by the reaction of the Prophet to a recommen­ dation made by a companion in favour of a woman thief against the imposition of the severe sentence of II add. The Prophet said : — "By Allah if Fatima daughter of Muhammad (PBUH) bad committed theft, I would have certainty cut off her band (agreed)." The verse, Q. 5 : 32, equates killing of a man with the killing of all mankind and saving of a man with the saving or ail mankind. The laws of Hudood and Taazir are equally applicable to all and the Holy Prophet condemned in the above Hadees about recommendation in the theft case, the .ways of the earlier people who .had different criteria of punishment for those who were wealthy and influential among them and those who were not and were poor. The relevant words of the ffadees are. (Jamiul Fawald by Muhammad bin Suieman Magbribi Vol: 1, page 499) "The Holy Prophet then stood and addressed the congregation andsaid 'No doubt the earlier people were destroyed as they left un­ punished those among them who committed theft but were (influential and imposed Hadd on those among them for commitment of theft who were weak." Equality before law and equal protection of law is thus tb« main inciple inherent in the Islamic law and polity. It is oneof the fundaental principles of Islam which cannnot be ignored. We do not see any reason why any such distinction between two types of permanent Government servants be made particularly when such pro-teistions have been afforded to ail Government servants io all the three Constitutions referred to above. This only gives a handle to the President or the Prime Minister to force officers of higher ranks to act according le his will rather than according to law. This gives the power to «' competent authority to remove a Government servant merely on the basis of his personal like or dislikes which is too arbitrary a test to deprive a person of the means ) of his livelihood and to deprive the nation of his talent and experience. In this age, one of the duties of Government is to seek emptoymen for the citizens of the country. In these circumstances arbitrary remova from service will also be repugnant to Skaria. One of the reasons foi affording protection and safegurd against premature retirement, removal, or dismissal is that all Government servants may act according to Law c without any fear or favour. To withdraw this protection amounts to vir­ tually withdrawing from them the duty to act according to law and cooscience and to Bake them bend to the will of the Chief Executive. Section I'. (/) i§ repugnant to the Quranic principle of equality before Law and equa protection before Law. It shall be repealed. The other provision is sub-section (/I) of Section 13. Though similar provisions have been there in the Service Rules, but if figures are collected of persons whose services were terminated on this ground or similar ground before 1958. and after 1958. it will be found that cases of such premature retirement before 1958 are extremely rare. The provision not only violates the principle of equality before Law and equal protection of Law but also gives to the competent authority an arbitrary power over the employers as already considered above. If after 25 years of service qualifying for pen­ sion or other retirement benefits, the efficiency of a Government servant is affected, disciplinary action can be taken against him under the Rules h ed under Section 16 of the Act. and he can be removed for inefficiency. This is sufficient safeguard for public interest. This provision shall also be repealed. We order that Sections 13 (0 & R d 13 (#) shall be repealed by the 29thL of February, 1984. The amendment in Section 13 (Hi) will be consequential f {TQM) Order accordingly.

PLJ1983 FSC 343 (OrlgiMl Jurisdiction) Present : aftab hussain, C. J . Au hussain qazilbash, ch. muhammad siddiq & malik ghulam Au, JJ In re : Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) Shariat Suit Motu No. 290, decided on 25-5-1983. (i) CeMtiMrtioB «f PatistM. 1973—

Art. 203-B and Evacuee Properties (Management & Disposal Act (XIII of 1975)—Evacuee trust properties—Management and disposal of—Scheme of—Repugnancy to injunctions of Quran and Sunnah—Gardens and Agricultural land forming part of evacuee trust properties given under scheme on lease for period of two and three years only—Held: Period of lease having been mutually agreed upon, scheme (of Act) not to be repugnant to Sharia on such score only. {P. 344]A (ii) Islamic Law & Jumpradence ----- Non-Muslim Trust — Pruperty belonging to — Islamic law of Waqf— Applicability o« - Htld : Islamic law of wag/ not to apply to property of non-Muslim trusts-- Held further : Such property to vest in Federal Government ant) <ame to have power to dispose it of in any manner advancing i ollrctivt good of nation — Constitution <>! Pakistan . 19^3 -An 203 D IP, 344)11 Mr Ifiikhar tfussam Ch. Advocate for Federal Government. of hearing : 24-5-1983. Aftab hwsmw C. J — The Act provides for the managemcni and disposal of an Evacuee Trust Properly attached to charitable, religious or educational trusts or institutions or any other property which becomes a part of the irust pool constituted under Section 7 of the Act. We have gone through :hc Act. Mr. Sanauliah Chauhan raised an objection that ihe gardens and agricultural land which form part of Evacuee Trust Properties are given under a scheme on lease for a period of two and three years only which period is too short. This objection hat Ino force in it because the period of lease is mutually agreed upon. There ms nothing contrary to Sharia in ih Scheme <>n this score- There is nothing Tin "r which may be repupnam to 'hi Holy Qura» and the Sunnah. Mr. Sardar Muhammad Virk km sen; an objection, the purpose of which is that «•?/ property vesu in Allah and cannot be used for the purpose of a temple or gurdawara. The Government has no authority to rent out Evaeuee Trust Properties to non-Muslims and should, there­ fore, confer ownership rights on the occupants. The objection itself is sell contradictory. There is a realization that this property its not waqf property but is property of non-Muslim trusts. Consequent!) the law of waq /in Islam cannot apply to it. The property 8 can, therefore, vest in the Central Government which has the power to dispose it of in any manner which advances the collective good of the nation. (TQM) Declared accordingly.

P L J 1983 Karachi 7 Presnt : fakhruddin A. shaikh, J MUHAMMAD SHAREEF—Petitioner versus Mst. NASEEM BEGUM and Another—Respondents Constituliona! Petition No. S./562 of 1980, decided on 23-8 1982. <S) Dissolution of Musihn Marriages Act (VIII of 1939)— S. 2—read with West Pakistan Family Courts Act (XXXV of 1964)— S. 5— Marriage — Dissolution of— Khula— Ground of — Respondent making allegation of petitioner being in habit of committing unnatural offence with her — Family Judge holding such allegation of sodomy though not proved, having been made by wife, it will not be possible for her to live with her husband within limit of God— Held: Such finding of fact by Family Court not to be said to be perverse or based on misreading of evidence. . [P, 8] A (ii) West Pakistan Family Courts Act (XXXV of 1964)—

S. 13(3} —Family Court — Decree of—Execution of—Recovery of amount decreed as arrears of land revenue—Family Court while decree­ ing suii for dissolution of marriage on ground of Khula directing respondent to pay Rs. 10,000 to petitioner m consideration within one month of judgment — Subsequently Court extending time for deposit of amount and respondent depositing same within such extended period— Held: Family Court to be competent to extend time fixed for deposit of money in money decree—Held funher : Failure oa part of respondeni to deposit amount to at most entitle petitioner 10 recover same as arrears of land revenue and order of Fami^ Court not to be set aside simply on ground of time for deposit of amount as stated in decree having been extended by such Court. [P. 8] B Mr. Ameer Ahmad Khan, Advocate for Petitioner. Mr. S. Abbas Zia, Advocate for Respondent. Date of hearing : 23-8-1982. judgment This constitution petition has been filed against the order/judgment of learned First Family Court and Senior Civil judge, Karachi dated iSib.. September, 1980 whereby he had dismissed the suit of tht petitioner for •restitution of conjugal rights and at the same time decreed suit of the respondent for dissolution of marriage by way of Khula. . The two suits .filed by the parties against each oiher were decided by one and ihe same judgment. While decreeing the suit of the respondent the learned Family Court Judge had directed that the respondent shall pay to the petitioner an amount of Rs. 10,000 as consideration for Khula within one month from cbe date of judgment i.e. 15-9-1980. 2. The amount was, however, no! deposited within two months On 12-11-1980 an application was moved by the respondent for extension of time. The learned Famiiv Court Judge granted this applica ion vide his order dated 16-11-1980 permitting the respondent to deposit .the amount of Rs. 10,COO before 20-11-1980. The respondent complied with ;his order. 3. The grievance of the pe'itioncr is two fold Firstly it is contended that the finding of the learned Family Court Judge that the respondent was entitled to Khula is based on mis-reading of evidence and secondly that the learned Family Court Judge after passing 'he decree had become fvnftus officlo and was not empowered ;o extend the time for depositing she amount. 4. So far as 'he firs: contention is concerned, the finding of the learned Famiiv Coui t Judge cannot be said to be pe,> verse or based on mis-reading of .evidence: The respondent had alleged in her suit for conjugal rights that the petitioner used to commit un-natuml offence i.e. sodomy upon her and that for this reason it was not possible for her fo live with the peti­ tioner. Although the learned Famiiv coum Judge held that the allegation was not proved, yet he was of the view ihat as the allegation of sodomy bas been made by the wife, it will not be possible for her 10 live with her husband, ft appears iha! what the Family Court Judge meant was thai due to this false allegation of the respondent relation between the spouse would not have been more bitter and that husband would be more cruei to tier if she started residing with him. On this view of the matter the find­ ing of fact of the learned Family Court Judge cannot be said 'o be perverse or based on mis-reading of evidence 5. So far as the other contention regarding extension of time for deposit of amount of Rs. 10,000 being consideration for Khula is concerned, reliance has been placed by learned counsel for the respondent on subsection (3) of section 13 of the West Pakistan Family Court, Act in which it has been laid down (hat if the decree passed by a Family Courts Judge provides for payment of amount, which is not paid by the judgment debtor then 'he amount shall be recoverable as arrears of land revenue. He has futiher argued that the failure to deposit the amoun-t on the part of the respondent would riot result in automatic dismissal of the respondent's sul because it has not been specifically stated in the decree thai if the amount is not deposited within one month, the suit shall stand dismissed. There is much force in this argument. The failure on the part of the respondent to deposit the amount of Rs. 10,000 would at the most entitle the petitioner to invoke the provision of section-13(3): The order of the learned Family Court Judge canno; be set aside simply on the ground that the time for deposit of amount as stated in the decree wis extended by him. The learned Family Court Judge has extended the time on the grouqfj jr that he: had inherent iwers lo do so. If the application for extension of time is read in the 'context of section 13(3) of the Family Court Act, it can be ar'gued with justification that-a Family Court Judge has inherent powers to extend time fixed for deposit of money in a money decree The present case is also a case of decree. There is no force, therefore, in the contention of the learned counsel for the petitioner :hat the learned Family Court Judge had become fundus officio after passing the decree. 6. Learned counsel for the petitioner has further referred to the notification of the District Judge whereby sortie change had been made in the jurisdiction of various Senior Civil Judges. This notification is dated 14-10-1930 i.e. prior to the order of the Family Court Judge, whereby the time was extended for depost of amount. Tne notification which is Annexure 'C' says that all 1st Class Civil Judges are vested with the powers of Family Court fudges in suits involving amounts of more than Rs. I5.0QJ. In view of this notification, it is argued that on 16-11-1980 when the learned First Family Court Judge had extended the time for deposit of amount-, he had ao jurisdiction to act as a Family Court Judge in the matter. This plea is also without aay substance. A 1st Class Civi! Judge who is empowered to entertain suits of amount exceeding Rs. 15,000 does not lose jurisdiction to «ntejtain suits involving an amount of less than Rs. 15,000. A 1st Clas Civil Judge has got all those owners with which a Ilnd. or Hlrd. Class Civil Judge is empowered. In view of this legal position it cannot be said that the learned 1st Family Court Judge had become funcius officio after passing the decree. The constitution petition is, therefore, dismissed with no order as to cost. Learned counsel for the petitioner makes a request that he may be allowed to withdraw the amount of Rs. 10,000 which has been deposited by the respondent in the Family Court. Mr. S. Abbas Zia has no objection, which he should not have. The petitioner is, therefore, allowed to withdraw the amount. (MIQ) Petition dismissed.

P L J 1983 Karachi 9 P L J 1983 Karachi 9 Present: G.M, kourejo, J SABIR SHAHZAD—Petitioners versus Msl. ZEENAT ARA and'?Others—Respondents Constitutional Petition No. S-61 of 19J32, decided on 17-6-1982. (i) Dissoletion of Muslim Marriages Act (VIII of 1939)— s,—_S. 2—read with West Pakistan Family Courts Act (XXXV of ?964>- S. 5—Marriage—Dissolution of— Khula— Ground of—Held: Issue of khula in each individual case to be considered on its own merits and despite failure of wife on other issues, some element iri and infacets of such other issues when combined together to furnish sufficient ground for dissolution of marriage. [P. i! ] A PLJ 1975 Lab. 241 rel. (ii) Dissolution of Muslim Marriages Act (VIII of 1939)—

S. 2—Marriage—Dissolution of— Khula —Ground of—Judge — Con­ sideration for— Held: Where Judge apprehends parties not to observe limits of God, wife to have right of dissolution of marriage on ground of khala —Held further : Only limitation to be that conscious of Judge to be satisfied for such affixed aversion between parties and wife to be required to restore on dissolution of marriage what was received by her in consideration of marriage. [P. J i ] B PLD 1959(W.P.)Lah. 566; PLD 1967 S C 97 & 1969 SCMR 118 ref. (iii) Dissolution of Muslim Marriagas Act (VIII of 1939)—

-S. 2 and Provisional Constitution Order (CMLA's 1 of 1981)—An. 9-— Dissolution if marriage on ground of khula —Order of—interference with in constitutional jurisdiction—Wife in case developing haired against petitioner to extent of her being not able to live with him within limits of God—-Family Judge satisfying himself on basis of material available on record for decision for dissolution of marriage on ground of khula— Held: Authority of Family Judge suffering from no jurisdictional defects and being not unlawful, no interference to be made in constitutional jurisdiction of High Court. [Pp. i 2 & 13] C, D & E (iv) Writ Jurisdiction—

-Wrong decision—Interference with— Heidi Decision of Family Court even if erroneous or such at whcih High Court would not have arrived, same not to render order without jurisdiction as jurisdiction to decide to include jurisdiction to decide rightly or wrongly and merely wrong decision not to render such decision without jurisdiction—West Pakistan Family Courts Act (XXXV of 1964)—S. 5 & Provisional Con­ stitution Order (CMLA's 1 of 198i)~Art. 9. [P. 12 ] D PL J 1974 S C60 rel Mr. S. Inayat All, Advocate for Appellant/Petitioner. Mr. S. Azizut Hassan Advocate for Respondent. Dales of hearing : 19/20-5-1980. judgment The facts leading up to this constitutional petition briefly stated are that the petitioner and respondent No. 1 were married on 24-8-1980, At the time of marriage she respondent No, 1 was a teacher in a school, whereas the peiitioner was a dispenser dispensing ointment in a shop. They happened 10 have acquaintance when the periiiouer visited the school for the admission of one of his cousins. Soon after tney developed intimacy and the petitioner expressed his love for respondent No. 1, They thought of marrying secretly and their Nikah was performed. After the Nikah they disclosed the marriage to their parents, and they started living together to their knowledge. Soon after they developed differences with the result that the respondent No. 1 on 16-7-1981 instituted Family Suit No. 1270 of 81 for dissolution of her marriage with the petitioner in the Family Court at Karachi. The dissolution of marriage was sought on grounds of cruelty, nonmaintenance and Khula. The petitioner filed written statement on 15-9-198! denying she allegations. The learned Family Court finding that there was no allegation for non-maintenance for a period of two years, framed the issues only on grounds of cruelty aod Khula in-the following terms :— (!) Whether the defendant has made the life of the plaintiff miserable with cruelty of conduct ? (2) Whether the plaintiff is entitled for dissolution of marriage on she ground of Khula ? The learned Family Court after recording the evidence adduced by the parties found the issue on ground of cruelty in favour of the petitioner, whereas that of Khula in favour of respondent No. 1 and dissolved the marriage vide his judgment dated 4-2-1982. The petitioner has challenged this.judgment in this petition as,being without lawful authority and of no Icga! effect. 2. I have beard Syed Inayat Aii, learned counsel for the petitioner and Mr. Azizul Hassan for the respondent No. 1. The contention raised on behalf of the petitioner by his learned counsel is three fold ; firstly, that the issue on the ground of cruelty having been decided by the Family Court in favour of the petitioner as not proved, the learned Family Court could not dissolve the marriage on the ground of Khula on the basis of the same evidence ; secondly, that on the basis of the evidence available on the record, there was no justification for the dissolution of the marriage on the ground of Khula ; and, thirdly, _that the authority exercised by the Iea~ned Family Court suffers from jurisdicti6oa! defects and, was therefore, unlawful. 3. As regards the first contention the impugned judgment passed by the learned Family Court is very clear to the effect that the evidence avail­ able in respect of the allegation of cruelty was insufficient as it was only a word against a word and, therefore, the allegation of cruelty .of conduct was. not proved. The impugned judgment passed by the learned Family Court is not to the effect that-the evidence adduced on the ground of cruehy was unreliable. In the circumstances, the contention that iJ the Family Court decides individual issues like those on cruelty and desertion etc. against the wife, it would militate against the grant of decree for dissolu­ tion of marriage on the basis of Khula, is obviously a technical one. Ini each individual case the issue of Khula would have to be considered on its own merit, aud despite the failure of wife on other issues, there might bo some element in and infacets of those other issues which either individually or when combined together might furnish sufficient ground for dissolving the marriage on the ground of Khula. Accordingly, no such general proposi­ tion can be laid down that the moment issue on cruelty is decided againstthe wife, she would not succeed on the claim of Khula at all. If anyi authority is needed in support of such a view, reference may be had to the] case of Mukhtar Ahmad v. Mst. Uma Kaisoom and another reported in PLJ 1975 Lahore 241. 4. As regards the second contention, the learned counsel appearing on behalf of the petitioner as well as respondent No. 1 have relied on the cases, Mst. Bllqees Fatima v. Najamul Ikram Qureshi reported in PLD 1959 (WP) Lahore 366 and Mst. Khursheed Bib! v. Babu Mukammad Amin, reported in PLD 1967 Supreme Court 97. In the former case, it was held that the wife is entitled to dissolution of marriage on restoration of what she received in consideration of marriage if the judge apprehends that the parties will not observe the limits of God. This view was confirmed in iM latter case by the Supreme Court. The result would be, that the wife has a right to a dissolution of marriage on ground of.Khula if the judge apprehends that the parties will not observe the limits of God. The only limitation would be that the conscious of the judge shall be satisfied for such affixed aversion between the panics and that the wife shall restore on dissolution of marriage what she received in consideration of the marriage. Relying on these two cases, the Supreme Court in the case of Ntshat Ahmed Khan v.' Ramlah Zakarla and others reported in 1969 S.CM.R. 118, observed that since the wife had developed an extreme dislike for the husband, it would be highly improper to force her to a life which would be quite repulsive to her. It was further observed that she would in those circumstances certainly be transgressing the limits of God, while living with him, and, therefore, came to ihe corscltsion that the learned Civil Judge in view of the evidence rightly dissolved the marriage in question. Judging the facts and circumst­ ances of the4nstant case in the light of ihe principles laid down in the above mentioned authorities, it would not be possible to say that the conscious of the Family Court was not satisfied while dissolving ihe marriage between the petitioner and respondent No. 1 on ihe ground of khula. The petitioner is a man of 26 years of age and is working as dispenser dispensing oin'rnenls in the shop and has passed intermediate science, whereas respondent No, 1 is of 32 years of age and is a teacher in a school and has worked as such for about last decade and is a graduate since then. It is obvious that she is well placed in life than her husband, the petitioner. It is, therefore, con­tended that the petitioner often demands money from her and is often dependent on her, with the result that he is not upto her expectations. She has alleged in her plaint as well as has deposed in her statement that on 28-4-1981, he went to the school and demanded money from her in presence of others. She has furiher deposed that on her refusal he gave her a slap and snatched from her wedding with the result that she developed hatred for him. Though she has not been able to substantiate the allegations by adducing a corroborative evidence as observed by the learned Family Court in the impugned judgment, the circumstances which resulted in the differe­ nces between the parties would clearly suggest that the petitioner con­ ducted himself in the manner that has been alleged against him. There has also been other litigation between the parties, apart from the suit for dissolution of marriage. The respondent No. 1 has alleged that the petitioner has also filed a suit for restitution of conjugal rights against her. Though the defendant No. i has denied it, but there has been no denial that as a result of the differences the petitioner instituted a Suit No. 2516/ 81 for injunction against the parents and relations of respondent No. 1 and one Malik Hanif Nihari Wala which is pending in the Court of XXI Civil Judge, Karachi. It is also clear in the evidence on the record that the learned Family Court put in efforts for reconciliation in pre-trial proceeding but could not succeed. The "Post-trial efforts for reconciliation between the parties were also made but with no result, as the respondent No. 1 was not ready to live with the petitioner in any case. The learned Family Court has observed that the respondent No. 1 during the trial was not ready even to look at the petitioner and that during the pre-trial and posttrial reconciliation proceedings she showed hatred against him. It appears that the continuous adverse conduct of the petitioner towards the respondent No. 1, coupled with the incident by which the petitioner went to the school and demanded money from her and on her avoiding slaped her and snatch­ ed away her weeding right, has resulted in extreme hatred for him with the result that she has come for dissolution of marriage. Keeping in view all this evidence and circumstances, it would not be justified to say that the learned Family Court by dissolving the marriage between the parties on the ground of Khula acted without any evidence and material available for such C decision. The facts and the circumstances of the case, would, therefore, 'disclose that the respondent No. 1 has developed a hatred against the petitioner to the extent that she will not be able to live with him within the ilimits of God and the conscious of the Family Court seems to have been (satisfied in that respect. ». 6. As regards the third contention, in view of my above discussion, jthe conscious of the learned Family Court appears to have been satisfied on the basis of the material available for decision for dissolution of marriage on the ground of khula. Even otherwise if it is assumed that the order of the learned Family Court is er-rone ous or such at which the High Court would not have arrived, that would not render ihe order without jurisdic­ tion, for where there is jurisdiction to decide then as it is often said, there is jurisdiction to decide either rightly or wrongly and merely a wrong decision does not render the decision without jurisdiction. Reliance in that respect has been placed on the case of Muhammad Hussain \funir & Others v. Slkandar & Others reported in PL1 1974 Supreme Court 60 wherein the learned Judges of the Supreme Court, made the following observations :— "It is wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case, it would make the High Courts's juritdiction indistinguishable from that exerciseable in a fullfledged appeal, which plainly is not the intention of the constitution makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render ths decision without jurisdic­ tion." It would, therefore, be very clear that the authority of ihe learned Family! Court suffered from no jurisdictional defect, and, was not unlawful. NoneB of the contentions raised on behalf of the petitioner, therefore, have anyj •ubstance. 7. In the result, I find no merit in this petition. It is accordingly dismissed with no order as to costs. (MIQ) ' Petition dismissed.

P L J 1983 Karachi 13 P L J 1983 Karachi 13 Present : ajmal mian & saleem akhtar, JJ MUHAMMAD AMIN and Others—Petitioners versus PROVINCIAL GOVERNMENT OF SIND through Hame Secretary and Another—Respondents Constitutional Petition No. 347 of 1974 S decided on 18-10-1982. West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956)— -

S. 3—Requisitioning of Property— -Bona fides of—Challenge to— Re'nt Controller ordering eviction of building in possession of Mukhtiarkar on ground of default in payment of rent—Subsequently Deputy Commis­sioner (Respondent No. 2) requisitioning tenement in question— Held: Order of requisitioning having been passed to defeat order of Rent Controller to be not bonafide and to be declared to be without lawful authority. [P 14 ] A Mr. Zaheeruddin, Advocate for Petitioners. Mr. Muhammad Ibrahim Memon, A. A G. for Respondents. Date of hearing : 18-! 0-1982, JUDGMENT Ajmal Mian, J.—The petitioner has impugned through this petition order dated 24-3-1973, whereby the Respondent No. 2 in exercise of powers delegated to him by the provincial Government of Sind under Notification No. XIII (76) Hd-Jud//2 under section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 requisitioned the tenement mentioned in the petition. The brief facts eading to the tiling of the above petition are, that the tenement in suit was in occupation of the Mukhtiarkar. The Deputy Commissioner through letter dated 12th September, 1961 informed the Petitioner No. 1 that the Mukhtiarkar occupying she tenement was directed by him to settle the rent for .the building in his occupation and to pay up the dues in arrears as well as the current rent without further delay. The petitioner was also advised to approach (he Rent Controller for fixing suitable, rent according to law. It further seems that inspitc of this letter and other'letters, the Mukhtiarkar concerned did not pay the "rent. The petitioners thereafter approached the Rent Controller for ejectment and filed Rent Application No. 14/68, which was allowed by an order dated 30-9-1971 by the Civi! Judge and Rent Controller, Tando Allahyar. After that the petitioner filed an Execution Application. Upon the filing of the Execution Applica­ tion the impugned order was passed requisitioning the tenement in ques­ tion including shops which were subsequently deleted by an amending order dated 5th November, 1974. The petitioners being aggrieved by the above order have filed the present petition. 2. Mr. Zaheeruddin has urged that the exercise of power by respon­ dent No. 2 was mala fide inasmuch as the Respondent No. 2 himself had advised the petitioner to approach the Rent Controller and thereafter he purported to pass the impugned order in order to defeat the order passed by the Rent Controller. Mr. M.I. Memon, the learned Additional Advocate Genera) was Unable to meet the above argument. However, he contends that since the petitioner has filed a review petition that should have been prosecuted which was not done. On the other hand Mr. Zaheeruddin contends that inspite of fact that he had filed a review petition, no action, was taken by Respondent No. I. Be that as it may, since a period of 8 years had already expired since the filing of the above petition, it will not be just and proper 10 non-sust the petitioner on the ground that a review petition was filed. ' It will suffice to observe that respondents have not produced any order passed on the above review petition. 3. We are inclined to hold that the exercise of power by respondent No. 2 was no 1 bona fide and it was prompted to defeat the aforesaid order f the Rent Controller dated'30-9-1971. In this view of the matter we allow the petition and declare ibat the impugned order is without lawful .iu homy. The petitioner shall be at liberty to file Execution Application in respect of the ejectment order dated 30-9-1971. (TQM) Petition accepted.

P L J 1983 Karachi 15 P L J 1983 Karachi 15 Present : abdul hayeb kureshi, C.J. Syed ISRAR ALAM—Appellant versus S.M. HUSSAIN—Respondent First Rent Appeal No. 857 of 1982, decided on 4-10-1982- (I) Sind Rented Premises Ordinance (XVII of 1979)—

J». 14— Delivery of vacant possession—Eviction proceedings in summary manner—Relief in— Held: Relief in eviction proceedings to be granted in accordance with circumstances as come to prevail on date of passing of order and not on date of institution of cause. [P. 16] A (it) Sind Rented Premises Ordiaance (XVII of 1979)—

.jj. 14—Delivery of vacant possession—Summary proceedings—Landlords initiating eviction proceedings against tenant u/S. 14 for personal need admittedly in occupation of building owned by him— Held : Piovisions of section being in nature of exception, relief to be completely barred in circumstances. [P. 17] D (Hi) Siffld Rested Premises Ordinance (XVII of 1979)—

S. 14—Delivery of vacant possession—Summary proceedings— Held Landlord to be required to subject himself to judicial scrutiny to prove genuineness of needs expressed by him and more accommodation not required on accouit of his desire to live in -unreasonable luxury or to dislodge tenant. [P. 17 JC (it) Siod Rented Premises Ordinance (XVI! of 1979)—

S. 14—Delivery of vacant possession—Summary proceedings—Land­ lord— Bona fides of— Held : Ordinance having been enacted to protect right of occupation of tenant, word "needs" in S, 14 not to be interpreted as if divorced form concept of bona fides or malafidesl&nd landlord apply­ ing for eviction ia summary manner for personal need to be required to prove bona fides of his requirement. [P. 16 ] 8 PLD 1981 Kar. 794 dissented from. Mr. Muhammad Jamil, Advocate for Appellant. order The present appeal has been filed by S. Israr Alam, who is the owner of House No. C/44 in North Nazimabad. Karachi. The appellant filed a case of ejectment against the Respondent on the ground that he needed the premises in occupation of the Respondent for his personal use. The case was filed by aid of section 14 of the Sind Rented Premises Ordinance on the premises on the appellant had retired from police service. I have heard Mr. Muhammad Jamil at length, and I have also perused the record in the case. Since' I have taken the view that this appeal in without substance, ! have not thought it fit to issue any notice to the res­ pondent, as that might unnecessarily burden him with expenditure and trouble. Briefly, the facts are that the house in question is double storeyed- Each floor was in occupation of different tenants. The respondent is in possession of the upper storey, and the accommodation therein consists of three bed rooms with attached baths, one drawing-cwm-dining room, one kitchen, one guest room, a garage and two servant quarters. The ground floor also has equal accommodation. Initially, the appellant filed two separate cases against the tenants of each storey of the bungalow, but it seems that, during the pendency of Jfae case out of which the present appeal arises, the appellant was able to get she possession of the ground floor of the said house. One of the main reasons that had persuaded the learned Senior Civil Judge to decline relief in favour of the appellant was that, at the time of passing of the final order, the appellant, having obtained posses­ sion of the ground floor of the bungalow, was not in genuine need of the premises in occupation of the respondent.The learned Advocate has initially contended that relief has to be given by relating it to the facts as existed on the date of filing of the application. To put it in simple words, the contention boils down to this that, if, during the pendency of a case, grounded on the need of the landlord, it is establi­ shed that the landlord had obtained other premises, then, regardless of that circumstance, eviction of the other tenant should also be granted. ! have not beer? able to persuade myself to agree with that view, because relief has to be gran ted in accordance with the circumstances as come to prevail on the date of passing of'ihe order, and not on the date of the institution of the cause. In the instant case, the landlord had filed two cases against two tenants, and, if he had succeeded in obtaining possession from one tenant, then the question, which arises, would be, whether he could still plead the ground of necessity and need in order to obtain eviction of the other tenant. Nothing has been placed before me to take the flew that is canvassed by the learned Advocate. He has, however, drawn my attention to paragraph 4 in the judgment of a learned Single Judg'c of this Court la the case of Wall Muhammad vs. Hamida reported in P.L.D. 1981 Karachi 794. In the above case, the learned Judge took the view that the questions of bona fide s could not hi investigated by this Court in cases under section 14 of the Sind Rented Premises Ordinance. The learned Judge compared the language of the new Ordinance w, ; Jh the language used in the West Pakistan Urban Rent Restriction Ordinance, in which statute the words "in good faith" were also used. I am not able to agree with the view, Because the mere use of the word "need" would envelop the concept bona fides. After all, it has to be established that a person needs the premises and, in such enquiry, it can never be said that the word has to be inter­ preted as if it were divorced from the concept of bona fides, or, mala fides. Taking that view would mean that even unreasonabl e and fanciful need will have to be met only if the landlord were to come and say that he needs the premises. Such an intention could never be attributed to the Legislature because the Sind Rented Premises Ordinance is enactment of a nature that is designed to protect the right of occupation of a tenant. The question that then arises is, whether the appellant needs the premises. Mr. Muhammad Jamil has taken me through the entire evidence, and ! find that the landlord has a family consisting of four sons and one daughter. Mr. Muhansmad Jamil stated that some, out of the four sons, were of marriageable age, but, on a reading of the application and the affidavit of exidence submitted by the appellant, I find total absence in regard to particulars of the ages of the children. It would, therefore, not be correct to say that the landlord requires the premises, or, additional accommodation for lodging his sons, who may be of marriageable age. On the other hand, the accommodation, that is presently available with the landlord, is ample and sufficient. After a!i, a landlord, when he is project-l ing his needs, has to subject himself to judicial scrutiny, so that it should],, be found, whether the needs, that he expresses, are genuine, or. he is want-j ing more accommodation on account of desire to live in unreasonable luxury, or, a desire to dislodge his tenant. Applying the test, I am of the view that, in the instant case, the landlord has sufficient accommodation, and his demand for more accommodation is not genuine. Subsection (2) of section 14 of the Sind Rented Premises Ordinance would also bar the grant of relief in this case, as the provision, which is in tbe nature of an exception, seems to completely bar any relief for the reason that the appellant is admittedly in occupation of a building owned by him. D Considering all the circumstances of this case, I am of the view that the order passed by the Controller is justified and does not call for inter­ ference. The appeai is dismissed in ismtne. (TQM) Appeal dismissed.

P L J 1983 Karachi 17 P L J 1983 Karachi 17 Present : nasir aslam zahid, J NADEEM AHMED Sheikh— -Plaintiff versus PROVINCE OF SIND, through Deputy Commissioner East, Karachi- Defendant Civil Misc. App. No, 2793/82 in Suit No. 5 of 1982, decided on 10-11-1982. (I) Civil Procedure Code (V of 1908)— -- -O. VII, R. 11 (d) — Plaint — Rejection of— Applicant contending plaintiff having challenged order of Summary Military Court, suit to be barred u/A. 15 (4) of Provisional Constitution Order (CMLA's 1 of 1981)— Plaint containing statement of oral gift of property in question having been made by plaintiff's father in favour of plaintiff much before his conviction by Summary Military Court— Held : Order of Summary Military Court having not been challenged in present proceedings. Art. 15(4) of P.C.O. to have no application. [P. 18 ] B& C (it) Civil Pr®cedare Code (V of 1908)— — -O. VII, R. 1 1 (</)— Plaint— Rejection for—Suit-— Barred by any Saw— Held: Facts stated in plaint to be taken as correct for purposes of deciding application u/O. VII, R. 11 (d) [P. 18 j A & B Mr, Farooq H. Nask, Advocate for the Plaintiff. Mr. Ibrahim Memon, Additional A.G. Sind, for Defendant. Date of hearing : 10-1 1 -1 982. order This is an application under Order 7, Rule 1 1 C.P.C. for rejection of the plaint. It is not mentioned in the application that under which sub-rule of rule 11 the applicauon has been filed. Apparently it has been filed under iub-ru!e (d) of rule 1 1 of Order 7 C.P.C. In the affidavit in support of this application it is averred as follows :— "(!) That I am Assistant Commissioner Karachi (East) as such well versed with the facts involved in the accompanying application under Order 7 Rule 13 C.P.C. (2) That the property in question has been confiscated under the order of Martial Law Authorities. (3) That I am advised to say that under Articles 9 & 15 of the Pro­ visional Constitution Order, 1981 this Hon'bie Court has no jurisdiction to entertain the suit or to pass any interim order.' 2. For purposes of deciding an application under Order 7 Rule 11 (rf) .P.C. the facts stated in the plaint are to be taken as correct. In the plaint it is mentioned in para 10 that in July, 1980 the plaintiff's father was con­ victed under Martial Law Regulation 31 and Martial Law Order No. 5 by the President Summary Military Court No. !8, Rawalpindi and apart from one year's imprisonment given to hiw, all his moveable and immoveablft properties have been confiscated. In para 4 of the plaint it is mentioned that in March, 1978 the plaintiff's father made an oral gift in favour of the plaintiffs which was duly accepted by the plaintiff's attorney who also took possession of the property in suit aktngwith the documents of title on behalf of the plaintiff, 3. In support of this application, Mr. Ibrahim Memon, learned Additional Advocate Genera!, has referred to para 10 of plaint. Then he has contended (hat no steps were taken by the plaintiff to get the property in suit mutated in hts favour. It was finally contended that under Article 15 (4) of the Provisional Constitution Order, the present suit is barred and the plaint is liable to be rejected. 4. I have perused Article 15 (4) of the Provisional Constitution Order. The order of the Summary Military Court No. 18, Rawalpindi confiscating the property of the plaintiff's father has also been shown. The order of .the Summary Military Court does not say that the property in suit stands (confiscated. Further, as observed earlier, for the purpose of deciding the application under Order 7 Rule 11 (rf) C.P.C. the assertion of facts given in the plaint are to be treated as correct. In para 4 of the plaint it is men­ tioned that an oral gift was made in March, 1978 much before the convic­ tion of plaintiff's father in July, 1980) in favour of the plaintiff in respect of the property in suit and the gift was accepted and possession of the same had also been taken on behalf of the plaintiff. If these fact are taken as correct, the property in question became the property of plaintiff in 1978, I.e. more than two years prior to the date of the order of th Summary Military Court. 5. It is an admitted position that the said order of the Summary Military Court has not been challenged by the plaintiff in the present suit. The argument that no steps were taken by the plaintiff to get the suit [property mutated in his favour, has no relevance. The question of prtma \facle case is to be seen is whether on the facts stated in the plaint and [assumed to be correct, the suit is barred by any law. Article 15 (4) of the Provisional Constitution Order also has no application as order of the Summary Military Court is not being challenged in-the present proceedings. 6. The present application has no merit CM.A. 2793/82 is dis­ missed. Mr. Ibrahim Memon learned Additional Advocate Generaj states that the present suit may be heard at an early date. An application can be filed by the learned counsel and the same will be decided on its own merits. (TQM) Application disallowed.

P L J 1983 Karachi 19 P L J 1983 Karachi 19 Present : fakhbuddw H, shaikh, J Mst. AMEENA—Appellant/Defendant Versus Mst. KULSUM BEGUM and 2 Others—Respondents/Plaintiffs Second Appeal No. 215 of 1970, decided on 20-9-J 982, Doctrine of Pan' Delictum—

Applicability of— Held : Where both parties be equally at fault, law Jo favour party having possession—Both parties in case using unauthorisedly land owned by Municipal Corporation without having any vested right to bring such portion of land in.his common use or to construct latrine- Appellant subsequently constructing wall around such piece of land and depriving respondents of use of common compound and common latrine situated therein—Respondents filing civil suit for declaration regarding their right of way and also for demolisuion of construction raised—Both courts below upholding claim of plaintiffs simply in ground of their having used such land for certain period of time— Held : Respon­ dents having not acquired any right of casement for such piece of iand by using same for very long time and born parties in case -unauthorisedly using such land owned by Municipal Corporation, principle underlying doctrine of part delicto to apply. [Pp. 20 & 21 ] A, B & C Broom's Legal Maxims, 10th Edn. p 489 ref. Cfi. Iftikhar Ahmad, Advocate for Appellant/Petitioner. Mr, Abdul Aziz Shaikh, Advocate for Respondents. Date of hearing : 20-9-1982. judgment This is second appeal from the order of learned Additional District Judge Karachi dated ! 3-1-1970 whereby he had up held the judgment of 1st Class Civil Court Karachi dated 10-2-1969 in Suit No. 169 of 1966, filed by the respondents against the appellant. 2. The suit of the Respondent/Plaintiffs was that the houses of the parties are Situated within a common compound and that in between these houses there was small compound measuring 6 Yds. into 4 yds. This smaller compound was in common use of the parties in which their common latrine was situated. It was further alleged oy the respondent/plaintiffs that the appellant constructed a wail around this smaller compound, whereby.the doors of the houses of the respondents were blocked and the respondents were deprived of the use of the common compound and the common latrine situated therein. Hence the suit for declaration with following prayers :— (1) That this Hon'ble Court may be pleased to declare that the plaintiffs had a right of way from their premises to the main gateway of the Compound and the right of way fo the latrine. (2) That the defendant be ordered to demolish the obstruction wall constructed by the defendant and further prohibit her in future to construct any such wall or create any obstruction in the way of the plaintiffs. (3) Any other relief that this Hatt'ble Court may deem fit and just in the circumstances of the case." 3. The appellant/defendant denied the claim of the respondents and pleaded that the disputed portion claimed by the respondents to be in their common use was and is part of her house. On these pleadings the learned Civil Judge framed several issues but the onfy re'cgant issue was whether the defendant/appellans had constructed the pucca wall around disputed compound so as to block doors of the house of the respondents. After recording of the evidence of the parties on the said issue and also inspecting the site, the learned Civil Judge came to the conclusion that the appellant had constructed such a wall and included the common compound in her house. On this finding he decreed the respon­ dents suit and directed the appellant to remove the wall. The appeal filed by appellant before the learned Additional District Judge was dismissed. 4. it transpires from the pleadings that the parties to the litigation were un-autfaorised occupants of the plots on which their houses were situated. The disputed common cotnpousd said to be in the use of th raspondents was also Municipal land and did not belong to any party. The respondents have not disputed this fact. They have not produced any document to prove that the plots on which their houses were situated were legally allotted to them or that they had any legal vested right to uie the disputed compound for the purpose of going to the latrine. It is not their case that the disputed compound was part of their houses. If the respondents were using this compound, they were doing so without any permission of the Municipal Authorities. 4. The suit as framed by respondents discloses that both the parties were un-authorisedly using the disputed portion and that none of them had »ny legally vested right to bring this portion of land in their common use A or to construct latrine on this piece of land. This is, therefore, a case'in which both the parties were in part delicto. The learned Courts below have failed to consider this important aspect of the case. They have upheld the claim of the respondents simply on the ground that they had been using the disputed piece of land for a certain period of time for the purpose of going to the latrine. It is not the case of the respondents that they had Acquired any right of easement over this piece of land by using the same ce a very long time. In any case since both the parties were untuthorisedly using this piece of municipal land, the principle underlying the doctrine of pari dellctum will apply. The doctrine is that when both the parties are equally at fault, then law will favour the party who is in possession. Reference in this connection may be made to Broom's Legal Maxims 10th Edition page 489 where in learned author states as under in respect of the parties who are in part delicto : — "Not only in equall jure, but likewise in par! delicto, is it true that potior est conditto possldentis : where each party is equally in fault, the law favours him who is actually in possession a well-known rule, which is, in fact, included in that more comprehensive maxim to which the present remarks are appended." 5. The real owner of the piece of land in question is admit­ tedly the K. M. C. Hence it is the K. M. C. who is entitled to take action against the illegal occupants, In the present case both the parties had been un-authorisediy using the said piece of land, hence in view of the maxims stattd above the respondents had no cause of action for relief of declaration and injunction against th« appellant. In view of this legal position the orders of »the lower Court cannot be up held. In the result the orders of the two courts below are •et aside, the suit of the respondent/plaintiffs dismissed and she appeal it allowed with costs. (TQM) Appeal allowed. Suit dismissed.

P L J 1$S3 Karachi 21 P L J 1$S3 Karachi 21 Present : saleem akhtar, J M. K. ABBASI—Plaintiff versus UNITED BANK Ltd.-Defendant C.M.A, No. 1427/82 ia Suit No. 774 of 1980, decided on 16-9-1982. (I) Civil Procedure Cod (V of I908)~

O. II, R. 2—Claim—Relinquishment of—Relief—Omission of—Held: Claim once omitted or relinquished not to be made subject-matter of subsequent suit on same cause of action while in case of omission of relief, plaintiff to be precluded from afterwards suing for any relief so omit­ ted—Held further : Bar under ruie to apply where previous and subsequent suits be based on same cause of action and in case of omission being with leave of court, bar not to be applicable. [P. 23 }A PLD 1970 SC 63 ; AIR 1949 P.C. 78 & AIR S935 Lab. 672 re/. (If) Civil Procedure Cod (V of 1908)— -—O. II. R. 2-C!aim-Splitting of—Policy of law—Held: Splitting of claim arising out of same cause of action not to be permitted as multiplicity of suits to be avoided and no party to be vexed twice for same cause of action. [P. 23 ]B (ill) Civil Procedure Code (V of 1908)—

O. II. R. 2—Claim—Relinquishment of—Bar of further suit— Held: Bar under rule not to be applicable unless court trying former suit to have jurisdiction to try claim omitted by plaintiff. [P. 24 ]D (It) Civil Procedure Code (V of 1908)—

O. II. R. 2—Claim—Relinquishment of—Bar of further suit—Plaintiff neither omitting to sue for claim nor intentionally relinquishing same but simply not pressing same because of refusal of Special Court (Banking) to entertain it because of want of jurisdiction— Held: Special Court having no jurisdiction to try claim omitted by plaintiff, bar under Rule not to be applicable. [P. 23 }C AIR 1940 P.C. 70 ; ILR 16 Mad. 481 & AIR 1929 P. C. 166 ref. Mr. AslfA. Zahidt. Advocate for Plaintiff. Mr. Inamul Haq, Advocate for Defendant. Mr, S. N. Haider, Advocate for Defendant order The defendant has filed this application under Order 2 Rule 2 C. P, C. praying that as the plaintiff has intentionally relinquished and omitted a claim of Rs, 27,320,78 before the Special Court the suit is liable to be dismissed. Briefly the facts are that the defendants bank had filed a suit in this Court bearing No. 365/79. The plaintiff filed his written statement in that suit and pleaded that the bank had failed to credit a sum of Rs, 129,1 )0,00 and therefore they are not entitled to claim any amount and have no cause of action against him. The plaintiff filed a counter claim along with written statement valued, at Rs, 27326.78 and prayed for decree against <he bank for the said amount. During the pendency of suit Banking Companies (Recovery of Loan) Ordinance was promulgated. Consequently the suit was transferred to the Special Court establishment under the sard Ordinance. The Special Court by its order dated 32-3-1980 held ihat as the counter­ claim is for an amount iess than Rs. 1 lac it had no jurisdiction to entertain it. The Advocate for the plaintiff made a statement there that the plaintiff would raise the counter claim to more than Rs. 1 lac and will pay Court fee after moving application for amendment. The said Court ordered that the counter-claim shall be entertained only after such an application was moved and granted so as to bring the counter-claim within the jurisdiction of the Special Court. On the next date of hearing the advocate for the plaintiff stated before the Special Court that the plaintiff does not want ro file caunter-claim in that court and wants to amend the written statement. Accordingly the case was adjourned and the plaintiff was required to file amended written statement. The plaintiff filed amended written statement from which the counter claim was deleted but set off pleaded. The said court therefore directed the plaintiff to pay cdurt fee on the amended written statement which included claim of set off. In the amended written statement the plaintiff had contended that various bills were entrusted So she bank but they failed to collect those bills for Rs. 1,29.110,06 and deposit the same ia Che account of she plaintiff. It was pleaded that if the said amount would have been credited in the account of the plaintiff it would have been in credit of Rs. 27,362.78 and the baok would not have been entitled to claim the amount in suit and interest. It had been pleaded that the plaintiff has suffered loss due to negligence of the Bank. Afier the amended written statement was filed by the plaintiff before the Special Court be filed the present suit for recovery of Rs. 27,362.78. From the facts stated above it is clear that the defence of the plaintiff before the Special Court is based on the same facts and cause of action on the basis of which the present claim has been made. The learned counsel for the defendant has contended that as the plaintiff while filing written statement before the Special Court has relinquished his claim he is not entitled to file the present suit as it is barred under the provisions of Order 2 Rule 2 C. P. .C. From the documents placed on record ,it is clear that from the very beginning the plaintiff was making a counter claim against the bank for Rs...27,262.78. This counter-claim was not admitted by the Special Court on the ground that it bad so pecuniary jurisdiction to enter­ tain it. Order II Rule 2 C, P. C. provides that if the plaintiff omits to sue for all the claims and the reliefs to which he is entitled on a cause of actioa then the plaintiff would not be entitled afterwards to sue id respect of the portion of claim so. omitted or relinquished. But where the plaintiff ij entitled to mors than one relief in respect of the cause of action and fails to seek ail the reliefs then he can ask for it only with leave of the court. The provisions of Order f I Rule 2 therefore clearly distinguished between claim and relief. A claim once omitted or relinquished cannot be made sub­ ject matter of a subsequent suit on the same cause of action. In case'a relief is omitted the plaintiff would be precluded from afterwards suing for any relief so omitted. However, Order II Rule 2 (3) provides an exception and if the omission is with the leave of the court then this bar will not apply. The bar provided by Order I! Rule 2 shall apply where the previous and subsequent suits are based on the same cause of action. Reference can be made to Mohammad Khalll Khan <& Ors v. Mahboob Ali Afbut '& Ors (AfR 1949 P. C.,78), Abdul Hakim v. Saadullah Khan (PLD 1970 S. C. 63) and A. I. R. 1935 Lah. 672. Another condition for applicability of -Order II Rule 2 C. P. C. as held in PLD 1970 S. C. 63 is that in both the suits the parties should be same. It is thus well settled (that the law does not permit splitting of claim arising out of the same cause of action, as a party cannot be vexed twice for the same cause and it will avoid multiplicity of suits. It has now to be examined whether the plaintiff omitted to sue in respect of the c!aim and intentionally relinquished any portion of the claim. The plaintiff had made a claim for Rs. 27320.78 by filing a counter claim in this court but after it was transferred to the Special Court it refused to entertain it for want of pecuniary jurisdiction. The plaintiff, therefore, restricted his claim for set off and did not press his claim for the counter­ claim before the Special Court. In these circumstances the plaintiff filed the present suit. The plaintiff did neither omit to sue for the claim nor he had intentionally relinquished it. It could not be pressed as the Special Court ruled that it has uo jurisdiction to entertain it. The bar under Order II Rule 2 docs not apply unless the court in which the former suit was pending had the jurisdiction to try the claim omitted by the plaintiff. In Jagat Sin^h v. Sangat Singh (AIR 1940 P. C. 70) it was observed that the bar docs not apply unless the court which tried the former suit had juriidiction to try the claim omitted by the plaintiff. In Naraslnga Rau v. Venkatenerayana (ILR 16 Madras 481) the plaintiff on the basis of bond of hypothecation filed a suit for recovery of principal amount, interest and sale of immovable property. The suit was filed in the court in whose jurisdiction the bond was executed and obligor resided. As she property was not situa­ ted in the jurisdiction of the court, the court dismissed that suit so far at it related to the property and claim of the principal but awarded the plaintiff the interest claimed against the defendant personally. Subsequen­ tly the p'aintiff brought a suit within the jurisdiction of the Court in which the property was situate, for recovery of principal money due on bond by sale of the hypothecated property. The Court held that the suit was not barred as the former court did not have the jurisdiction to entertain the suit in respect of claim which is subject matter of the subsequent suit. Further reference can be made to Mt Jaggo Bal v. Ustana Lai (AIR 1929 P. C. 166) where a certificate under the Pensions Act, 1871 was a necessary condition to the entertainment of the suit and condition wss wanting in the former suit, a subsequent suit was held not to be barred. It is thus well settled that unless the court which tried the former suit jad the jurisdiction to try the claim omitted by the plaintiff the bar inder Order II Rule 2 will not apply. The application is, therefore, lismisssd. (TQM) Application dismissed.

P L 3 1983 Karachi 24 P L 3 1983 Karachi 24 Present : ali nawaz budhani, J MUHAMMAD SH API— Appellant versus Afj/.'ZEHRA KHATOON— Respondent !st Rent Appeal No. 251 of 1980, decided on 5-9-1982. (f) West Pakistan Urban Bent Restriction Oriisiaaee (VI of 199)— -- S. !3(2)(j>-Eviction— Default in payment of rent— Held: Default in payment of rent to carry element of intention not to pay rent — Tenant in case making every effort to pay rent, tendering same through money orders and depositing same in Court on its returning unpaid-Certain amount received by landlord as "rent deposit" also never ad­ justed towards rent in case of any "default"— Held: No wilful default having been committed by tenant, order of eviction to be set aside. [P. 26}BdC (ii) West Pakistan Ufbss Sent SesftricUoa Ordinance (VI of 1959)— - S. 13(2)(f) — Explanation (j7)-— Tender of rent — Landlord making no allegation of coupons of postal department produced by tenant haviag been forged and never issued by postal authorities— Held: Coupons having been issued by the postal department, rent to be presumed to have been tendered by money, orders— Held further: Rent Controller having disallowed tenant's application for summoning of concerned clerk of postal department, contrary Endings, on basis of tenant's failure to examine such witness to be erroneous. [P. 26 ] A Muhammad Shaft Appellant (in Person), Mr. M. Muzaffarul Hag, Advocate for Respondent. Date of hearing : 8-8-1982. /UD06I8HT This i an appeal directed against the judgment passed by III Rent Con­ troller Karachi on 23rd January 1980, directing the appellant to vacate the shop premises bearing No. 7, Zehra Chambers, Zaibunissa Street, Saddar Karachi. 2. The facts leading to the instant appeal are that the appellant is the tenant of respondent in respect of shop premises No. 7, Zehra Chambers, Zaibunissa Street, Saddar Karachi on a monthly rent of Rs. 150. Respondent filed a Rent Applicaiion No. 3651/1976 against the appellant on the alleged grounds of non-payment of rent, for making illegal and unauthorized consfruction, for converting the shop into a factory, for infringing terms of j tenancy agreement and for subletting the premises. 3. The appellant/tenant in the written objections before the trial Court has-denied the allegations of the respondent and stated that the respondent had refused to receive the rent from him inasmuch as the appel­ lant sent the rent for (fee monfris /one, Su(y, August and September, 1975 by three money orders which were refused by the respondent and therefore, the appellant had no alternate but to deposit rent with Nazir of the Court. The appellant therefore, pleaded that there was no default on his part. 4. The Rent Controller on the pleadings of the parties settled the following issues : (1) Whether the opponent is a wilful defaulter? If so since when V (2) Whether the opponent has carried out uo-authorized construction 7 !f so its effect ? (3) Whether the opponent has converted the premises in question from shop into factory? If so its effect ? (4) Whether the opponent has violated the terms of tenancy agree­ ment? If so its effect ? (5) Whether the opponent has sublet the premises in question ? (6) What should the order be ? 5. issue No. 1 was found in the affirmative while ail the remaining issues were found in the negative by the Rent Controller. Accordingly vide issue No. 6 the Controller ordered eviction of the appellant. Against the aforesaid order dated 23rd January 1980 an appea! under section 15 of the Urban Rent Restriction Ordinance 1959 was fiied but the District Judge opined that the appeal would lie befofe the High Court in view of the provisions of Sind Rented Premises Ordinance, 1979. Hence the instant appeal was fiied in this Court, 6. The appeal was heard by this Court aod the appellant argued the matter in person and submitted written arguments while Mr. Muhammad Muzaffarui Haq- Advocate has made submissions on behalf of'he respon­ dent in respect of issue No. I relating So default. This issue is appealed against in this case while the other issues are in favour of the appellant, 7. One Abdul Ghaffar the brother and attorney of the appellant wa examined at Ex. 6 by the Rent Controller. He has deposed that respon­ dent had refused to receive the rent and therefore,. he had sent the same through money orders but the same was also refused. He has produced three money order coupons Ex. 6-B, r i-C and 6-D. Respondent's attorney has produced Nazir's reports Exs. 5-C and 5-D/I-3,, Respondent's con­ tention was that the appellant had even committed default in the deposit of rent in the miscellaneous reni case also. The learned Rent Controller has con­ sidered the aspect of sending the mpney orders and the production of three money order coupons and came to the conclusion that the appellant has failed to prove that he offered or tendered the rent in question by money orders. Fne Rent Controller doubled the sender of rents through money orders, as h» believed the postman or clerk of she rom Office was necessary to prove that the money orders, were in lac! is«.(i«l. He also believed 'hat the endorsement "refused" shuuld have exisu-J <>n coupon--. 8. In the writien arguments a coniention is raised by the appellant that he had made an application on 15-7-1979 for summoning the official concerned of ihe Post Office. A certified copy of :hc said application and supporting affidavit are annexed with memo of appeal as annexure C. It is further submitted that she lower Caurt did not allow the said application. It is also rebutted in the written arguments that the correct address of the landlord was given and there is no ground to state that the address was wrong. The address is given in the upper part of ihe money order form, which is not included in the coupons. It is erroneous on ihe part of the Controller to believe that proper address was not mentioned in the money orders. . 9. This Court has examined the coupons produced by the appellant in the lower Court. It is proved that the rent was tendered through money lorders as the coupons of the postal department are produced. Unless the .allegations are made that these coupons are forged and not issued by the ;postal authorities till then it must be presumed that the coupons were issued by the postal department and the logical conclusion is that th.cient was tendered through the money orders. When the money orders returned unpaid the same amounts were deposited in the Court in miscellaneous Tent application. The basis of Ihe findings on the failure by the tenant to examine the cierk of postal department in my opinion is erroneous. There is an application by the appellant/tenant in the lower court where in he has prayed to sumon such a clerk but it was disallowed. 10. It is to be observed that in the deposition of the attorney of respon­ dent following admissions are make : "It is a fact that we had taken Rs. 7000 more as deposit from the opponent beside Rs. 5000 mentioned in the rent agreement. Besides this we had taken Rs. 900 as rent deposit from ihe opponent." Rs. 900/- were taken by the landlord/respondent for the rent deposit and this amount is not adjusted towards the rent if at ail there was default. When the amount was taken earlter as rent, there would be hardly any default on the part of the appellant althorugh appellant had made every effort to pay the rent through money orders and then alternatively deposit­ ing the rent, in miscellaneous application in the Court. Default should carry an element of intention not to pay rent. Here there is no such in­tention. To the contrary there is every effort to pay the rent when already a sum of Rs. 900 was lying deposited as "Rent deposit" with the resoondent. II. The learned Rent Controller in his judgment, made a reference, that the appellant deposited the rent for the month of November 1975, on 26-1-1976, which according to law he ^hould have deposited before 15th of December, 1975. This and other so-called defaults were agitated in Appeal No. 237/78. and were decided in favour of the appellants. Thus the Rent Controller should not have considered this aspect at all, as he is barred by the doctrine of res judicata 12. The finding of the learned Ren! Controller in respect of issue No. 1 Jis erroneous and there is no wilful default committed by the tenant; jappellant. The Controller has not considered the point that there were (already Rs 900 lying in rent deposit with the respondent. in the result 1 set aside the judgment of the Rent Controller and it low the appeal with no order as to costs. (TQM) . Appeal dismissed.

P L J 1983 Karachi 27 P L J 1983 Karachi 27 Present : naimuddin & munawar Au khan, JJ MONDI'S REFRESHMENT & BAR. Karachi-rPetitioners versus ISLAMIC REPUBLIC OF PAKISTAN, through SECERTARY Ministry of Finance, Government of Pakistan, Islamabad and Another—Respondents Constitutional Petition No. D-91 of 1971. decided on 12-8-1982. (i) Central Excise & Salt Act (I of 1944}—

S. 2(dt) and Schedule I, Part II and Constitution of Pakistan, 1962— Art.: 131 (2) A Schedule III—Entry 43(b) —Excisable services—Levying of duty on—Centra! Legislature—Competency of—Petitioners challenging levying of excise duty on excisable services inter alia on ground of express bar on power of Centra! Legislature by Constitution— Held: Expression "'excisable services" having been defined as services, facilities and utilities as specified in Part II of First Schedule to Act (I of 1944), levying of excise duty by Central Legislature on basis of charges recovered for drinks, food and other services, facilities and utilities provided in hotel or restaurant not to open to question. [P. 46 ] C (If) Centra! Excise & Salt Act (I of 1944)— ——S. 3—Restaurant—Meaning of— Held : Establishment, organization or other place where food or drinJcs sold, whether or not other facilities or utilities provided therein, io be restaurant to attract provision of S. 3. [P. 46 ] F (Hi) Centra! Excise & Salt Act (I of 1944)—

S. 2(dd) and Schedule I—Parf II—Excisable Services—Meaning of— Held-. Services specified in Part II of 1st Schedule having become part of definition of "excisable services" by reference, same to be given effect by Courts. [P. 47 j G !t) Central Excise & Salt Act (I of 1944)- -—S. 3 as amended by Finance Ordinance (XI of 1970)—Excisable services —Levying of excise duty on—Ordinance promulgated by usurper—Effect of—Petitioner challenging levying of excise duty inter alia on ground of Ordinance (XI of 1970) making amendments in Act (I of 1944) having been promulgated by usurper to be no valid piece of legislation— Held : All existing laws having been saved by Art. 280 of Interim Constitution (1972) and Art. 268 of Constitution (1972) and even Supreme Court having condoned such acts and legislative measures as could be com­ petently made by Legislature, contention to be of no avail particularly when arpendrnent brought in Act be within competency of Legislature. fP. 49 ) J & K PLD 1972 SC 139 rej. PI D !980 Kar. 345 distinguished. (v) Centra! Excise & Salt Act (I of 1944)—

-S. 3—Excisable services—Levying of duty on—Rent charged by hole! Duty on— Held : Room or suite of rooms in hole! even if let out on rent to be treated as service, utility or facility and rent charged by hole) for such rooms rented out to be subjected to duly. [P. 51 J O (yi) Constitution of Pakistan (1973)—

Arts. 4 & 25—Discrimination— Held : Unreasonable or arbitrary differen- .tiation having no rational basis with reference to- legislation io be prohibited but mere differentiation or inequality in treatment not to amount to discrimination—Petitioner not alleging exemption from pay­ ment of excise duty provided to classes of hotels or restaurants on basis of turn over be to arbitrary, capricious or based on irrelevant considera­ tion— Held : Classification not to be said to be, in contravention of Articles [Pp. 52 & 53 ] Q & S PLD 1957 SC(Pak.)46f<?/ (vii) Constitution of Pakistan (1973)-- ..

Art. 25-Equality before law— Held: Principle of equality not io amount to equality of operation of legislation upon all citizens'of Stair as every law not to have universal application for ail persons not in same position by na'ure, attainment or circumstances and varying needs of different ciasses of persons also to require separate treatment. [P. 52 J R PLD 1957 SC (Pak.) 9 & AIR 195! SC 318 & "Fundamental Rights ar.J Constitutional Remedies" by Sharifuddin Pirzada, 1977 Edn. Pp 371/372 re/ (.>'»") Constitution of Pakistan (1962')—

Art. !3i (2) & Schedule III—Entry 43(6}—Excisable services—Levying of excise duty—Challenge to—Petitioners challenging levyjng of excise duty on excisable services Inter alia on ground of same being ultra vires, of Constitution— Held : "Excise" being word of wider import, con­tention that Centra! Legislature under 1962 Constitution io have no power to levy excise duty in respect of excisable services as same not covered'by term "duties ©f excise" to Sjave no merit. [P. 45 ] B PLJ 1975 Kar. 202, PLD 1964 SC 113 & S979 SCMR 640 ref. AIR 1945 FC 98 , AfR 1942 FC 33 & AIR S939 FC 1 distinguished. (ix) Legislature—

Powers of—Limitation on— Held: Legislative being sovereign to be competent to choose any basis for levying excise duty on services, utilities and facilities provided in hotel or restaurant subject to any limitation provided in Constitution. [P. 46 ] D () Legislature—

Power to levy tax or duty -Held : Legislature where competent to levy tax or duty, same to be done by providing for same either in existing Ac! or by passing independent Act — Held further : Legislature io consider manner convenience to levy tax or duty and no valid objection lobe taker. on that score aione, [P. 50 } L & M i'xh Interpretation of Statutes -- -Eititdrm generis- Rule of -Held : Question of genera! words u;>ed in Ma;ute not following particular r>jspecific words receiving any (and wha' 1 limitation to sometime depend upon intention of Legislature to be gather­ ed from other pans of statute. [Pp. 51 & 52 ] P Craieson Statute Laws, 5th Edn. P. 171 ref. <xii) Schedule— ——-Construction of— Held : Schedule in Act being mere question of drafting to be as much part of-statute and as much enactment as any other part— Held further : Any enactment in Schedule contradicting earlier clause to prevail. [P. 47 ] H AIR 1918 All, 168 ; AIR 1961 AH. 24 & Cfaies on Statute Law, 5th Edn. P. 208 ref. (xiii) Writ Jarisdictiots- —

-Disputed question of fact—Interference with in— Held : Disputed ques­ tions of fact not to be interfered with and decided in constitutional jurisdic­ tion of High Court—Constitution of Pakistan, 1962—Art. 98. [P. 46 ] S (xlv) Words & Phrases— —"Excise"—Meaning of, [Pp. 41 & 42 } A Oxford Dictionary (Vol. Ill, P. 379) ; Webster's New. International Dictionary (P. 890) ; Jofltt's Dictionary of English Law ; Wherton's Law lexicon (P. 364) ; Black's Law Dictionary (4th Edn. P. 672) ; Stephen's Commentary (Vol. II Ch. 7) ; Science of Public Finance by Findley Shirvct (Vol. I! P. 652) & AIR 1939 F.C. 14 ref. (xt) Words & Phrases —

"Charge''—Meaning of, [-P. 50 } N Concise Oxford Dictionary ref. Mjs. Iqbal Kaii. Mohsin Tayabally, Qarnaru! Islam, Mamoon Kax Advocates for Pciirioners. Mis. A. Sattar Shaikh, Add!. A.G., Muzzafar Hassan & Hamtd Hussal Advocates for Respondents. Dates of hearing : 24/2--3-1982 & 3/4-5-1982. judgment Naimmldin, J.—We propose to dispose of this constitution petition and Constitution Petitions Nos. D506/1970, D-92/1971. D-93/1971, D-94/1971. D-95/1971, D-129,1971, D-133/1971, D-383/1971, D-390/1971, D-26/1972, D-29/J972, D-220/1972. D-798/1974. D-299/1975, D-147/1976, -D-523/1976, D-428/1976, D-626/I976 and H.C.A. No. 71/1979, by this common judgment for in all the above mentioned cases common question or questions of law are raised. 2. The Constitution "Petition No. D-506/1970. is under Article 98 of the 1962 Constitution, read with Provisional Constitution Order of 1969 fiied by Shaikh Habibullah against Pakistan, Centra! Board of Revenue, -and Co'lector, Central Excise & Land Customs, Hyderabad. The Consti­ tution Petitions tiled in 1971 and some in 1972, are under Article 98 of the Constitution, .1962 and some are under Article 20), of the Interim .Consti­ tution, 1972. fhe Constitution Petitions riled in the year 1974 or there­ after, are under Article 199 of the Constitution of 1973 and the High Court Appeal is under seciion 3 of the Law Reforms Ordinance, 1972. •3. Since the main arguments were advanced in Constitution Petition No. 91 of 1971 by Mr. Iqbal Kazi Advocate, we would therefore, first give facts of this Constitution petition. 4. The petitioners Mondi's Refreshment Room & Bar, a registered firm, were at the relevant time running a liquor bar at Dawood Pota Road, Saddar, Karachi, under the licence issued to them by the Collector & Director, Excise & Taxation, Karachi, under she provisions of the Sind Abkari Act, 1878. 5. The petitioners state in the petition that they sold liquor at the aforesaid premises under the licence but did not sell any food nor was any food prepared and sold at their instance at the said premises. According to them they did not render any services of any kind to the customers except the sale of the liquor which is authorised under the licence issued to them by the Provincial Government. 6. However, in the counter affidavit by Mohiuddin Afamed, Superin­ tendent, Central Excise & Land Customs, Circle 'B', Karachi on behalf of respondents, be claimed that the petitioner served light refreshment in the premises and. thus the services rendered by them in the premises were excisable services within the meaning of section 2(dd) of the Centra! Excise & Salt Act, 1944 (hereinafter called the Act) and therefore, came within the purview of provisions of section 3(1) of the Act and accordingly were liable to pay prescribed duties. Accordingly, the Superintendent, Centra! Excise & Land Customs, Circle 'B', claimed from the petitioners a sum of Rs. 17, 414.82 as central excise duty on service charges calculated on the total sale of the petitioners from 29-6-1970 to 3S-12-I970. We may here reproduce the contents of the Notice of Demand verbatim. •C. No. 32/35-CE/7I M/s. Mondi's Refreshment Room, Frere Street, Saddar, Karachi-3. Sub : DEMAND OF CENTRAL EXCfSE DUTY ON RESTAURANTS & BAR. Whereas it has been reported to the undersigned that you are not paying Centra! Excise duty on Service Charges levied vide Annual Budget of 1970-71 announced on 29th June 1970 and subsequently revised under SRO. 166/70 dated 29th July 70. You are therefore asked to deposit Rs. 17,414.82 as Central Excise Duty on Service Charges calculated on your total sales from 29-6-70 o31-12-70 within 10 days from the receipt of this notice, failing which action under Rules 8, 10 & II of Central Excise Rules, 1944 will be taken against you." 7. The petitioners in reply to the notice denied their liability on the I following grounds contained. in their letter dated 1-3-1971. addres- . ed to the Collector, Central Excise & Land Customs, Karachi, respon- J dent No. 3. (o) As aforesaid we do not supply any services or for that matter, services like, lodging, catering, cabret aod the like which are intended to be taxed therefor-e the question of applicability of this duty to aur liquor Bars does not arise. {) That we do not have the mainly affluent section of the Society as our customers. On the contrary that the majority of the customers belong to lower and lower middle class, (c) That as aforesaid we only sell liquor and do ncn render any service to the customers. There are no cabrets, nor any food is supplied nor any lodging is permitted. (d} That our business of running a licensed Bar is not the expanding field of services which is rapidly claiming a growingly large share of Gross National Product. («) That the licensed Bars of liquor are not the posh first class restau­ rants visited by the affluent sections of the Society. As a matter of fact the licensed Bars are not restaurants at al! by any definition of the term. Nor do we hold any licence from any authority local or otherwise for running a restaurant. (/) The liquor Bars are governed by the provisions of a licence issued by the Collector & Director, Excise & Taxation, Karachi, under the Sind Abkari Act 1878. (f) Entry into a Bar restricted under the licence conditions to persons of and above 20 years age, whereas in case of a restaurant it is not so. (k] Entry-of an insance and infirm person feto a liquor Bar is prohi­ bited under the licence conditions. (f) Uoiike restaurants, the opening and closing hours of liquor Bars are prescribed by the Commissioner and Director of Excise & Taxation, Government of Sind. (/) Restaurants can be opened by any person in any locality, but number of liquor Bars is fixed by the Provincial Govt. and they can be run in the premises and localities approved by the Collec­ tor & Director, Excise & Taxation, Karachi under the Sind Abkari Act. (Jfc) Liquor Bars remain closed on every Friday, Eid Holidays, Ten days of Moharrum and during the whole month of Holy Ramzftn. (/) Liquor Bars cannot be sublet nor can liquor be sold on barter." 8. In his relply by letter C. No. 6/5-CE/7!, dated the 1st of March, 1971 Collector of Central Excise and Land Customs, Karachi, respondent 3 asserted that bar is is a restaurant as defined in the Part II of the First Schedule to the Central Excise and Sale Act 1944 and all services rendered in a restaurant where alcoholic drinks are provided are liable to excise duty. 9. They .have therefore sought the following reliefs in the petition : (a)' A declaration that the Finance Ordinance, 1970, amending the Centra! Excises and Salt Act 1944 imposing excise duty on "services provided or rendered" is ultra vires. (b) Declaration that respondent No. 1 cannot in law levy, impose or coliect any excise duty on the liquor sold by the peiitioners under licence issued by the Director of Excise and Taxation on behalf of the Provincial Government and that the imposition against the petitioners was iiiogai, '!•-i a^^r iii: jj

o tht law and Habie '<• ^<" q ua.shed cV I njunci;c ;t restraining the respomlerii:, and ail .iheir subordinates from recovering any excise duty on ihc sale of liquor by the pe tuioners 10. In Constitution Petition No. D-506 of I97>. ihe petitioner Shaikh Habibuliah, stales that he is running hote! and restaurant business in Hyderabad City, where he has been supplying food, beverages and refresh­ ments, mostly on a retaii basis. He has challenged the vires of the Noti­ fication No. S.R.O. 166 (1/19) dated 29-7-1970, which has fixed the limit of exemptions from payment of excise duty on exercisable services of R>>. 4 lacs in the cities of Lahore and Karachi and Rs. 2 lacs for other cities in Pakistan. 11. In Constitution Petition No. D-92 of 1971. the petitioners a registered firm, state that they are running a Bar and Refreshment Room a! their premies on Garden Road, under the licence issued to them b\ the Collector and Director of Excise and Taxation. Karachi under the provisions of the Sind Abkari Act, J878. They have challenged ihe demand for payment of Rs 14,468.32 as the CentrnI Excise duty on services provided or rendered calculated on their total sale from 29-6-1970 to 31-12-1970 almost on «arne grounds as stated in Constitution Petition No. 91/7). 12, In Constitution petition No. D-93/ of 1971, the petitionets, Paris Refreshment Room & Bar, state that they are running a liquor bar at Preedy Street, Saddar, Karachi under the Licence issued to them by the Collector and Director of Excise & Taxation, Karachi. They are aggrieved by the demand for payment of Rs. 14,468.32 as the Central Excise duty cd service charges calculated on their total sale from 29-6-1970 to 31-12-1970 on same grounds as stated in Constitution Petition No. 91 of 1971. 13. Constitution Petition No. D-94 of 1971, the petitioner Jamshed Refreshment Room & Bar, state that they are running a liquor bar at % Napier Street, Saddar, Karachi, under the licence issued Jo them by ihe Collector and Director of Excise & Taxation, Karachi. They are also aggrieved by the demand for payment of Rs. 10025.02 contained in the notice dated 29-1-1971, issued to them by the Superintendent, Central Excise & Land Customs, 'W Circle, Karachi on the same grounds as stated in Constitution Petition No. 9iofS97!. 14. In Constitution Petition No, D-95 of 3971, the petitioner!, Hirjina & Co. (Pak) Limited/jState that they are running the following liquor bars in Karachi, under the licence is sued to them by the Coliecter and Director of Excise & Taxation, Karachi . Elpbinstone Refreshment Room. 2. Majestic Refreshment Room. 3 Piccadiiy " Refreshment Room •«. New American Refreshment rook? 5. Nelson Refreshment Room 6. Merry Refreshment Room 7. Me!rt« Refreshment Room S Queenf- Refreshment Room 10. Taj Mahal Refreshment Room. 15. They have challenged the demand for payment of

total of its. 52,296.45" contained in several notices dated either 21-1-1973 or 12-2-1971 m detailed below. 1. Elphinstone Bar & Refreshment Room. R§. 8,272,12 2. Majestic Bar . ... 7.085.92 3. 'Piccadilly Bar ' ... 4. New American B&r ... 4,287.06 5. Nelson' Refreshment Room - ... 11,180.24 6. Merry B»r & Refreshment Room ... 7,185,69 8. Queens Refreshment Room ... . 8,635-58 8. Taj Mahal Bar ft Refreshment Room ..-• 6,251.21 Total ... Rs. 5229645 16. The petitioners' have inter alia, claimed that they do aoi provide render any services on their aforesaid bars which claim is denied in the Mer Affidavit. petitioners have therefore, prayed for declaration that ; the Finance Ordinance 1970 amendtng the Central Excise ft Sal? Act 1944 imposing excise duty on "service provided or rendered" is ultra vires : (6) the respondent No. 1 cannot in- !aw levy, impose or collect aay excise duty oa the liquor sold by the petitioners in their bars me by ihtm under licensees issued by the Director of Excise & Taxation on behalf of the Provincial Government and that the imposition against the petitioners is illegal, not according to the law aad liable to be quashed. (c) Injunction against the respondents sod all their subordinates front recovering any excise duty on the sale of liquor by the petitioner! at their bars namely-(l) Elphinston Refreshment Room, (2) Majestic Refreshment Room, (3) Piccadily, Refreshment Room, (4) New American Refreshment Room, (5) Nelson Refreshment Room, (6) Merry Refreshment Room, (7) Metro Refreshment Room, (8) Queens Refreshment Room, (9) Cecil Refreshment Room and. (10} Taj Mahal Refreshment Room. 17. In Constitution Petition Mo. D-129 of 1971, the pelitiouei Dhanji Minocher states that he is running & liquor bar at 118, Preedy Street . & Mansfield Street. Corner, Saddar, Karachi "in the name of Virgo Bar iHjder the licence issued to him by the Collector and Director of Excise & Taxation, Karachi under the provisions of the Act. He has challenged she demand for payment of Rs. 3792.58, contained in the notice dated 29-1-197! on the same grounds as stated in the Constitution Petition No. 91 of S97I . .18 In Constitution Petition No. D-133ofl97j, the petitioner Iran: Refreshment Room & Bar, a registered firm states that they arc running •liquor bar at Nigar Cinema Building. Lawrence Road, Karachi, under the licence issued to then) by the Collector .and Director of ihe Excise and Taxation, Karachi, under the provisions of ihe Sinde Abkari Act. They have also challenged . the demand for payment of 7,270.73 as contained in the notice dated 12-2-1971, on the same grounds as stated .in Constitution Petition No. D-9J-/71. 19. In Constitution Petition No: D-383 of 1971. the petitioner Beach Luxury Hotel Limited, states that it is carrying on business of residential Hotel, Refreshment Room, and liquor Bar under the licence issued to it by the Collector/Director, of Excise & Taxation, Karachi under She provisions of the Sind Abkari Act, It has questioned the levy of excise duty of 10 per cent on services provided or rendered by amending the Central Excise & Sal! Act, 1944, Act through the Finance Ordinance, 1970 as illegal, ultra vires the Constitution, invalid, and ineffective on the grounds mentioned in the petition, 20. In Constitution Petition No. D-390 of 1971, the petitioners Sultaa Ahmed and Mohammad Osman siate that they are running restaurant business at Hyderabad, where they supply food and drinks on retail basis. They have questioned ihe legality aad the vires of the amendment made in the Centra! Excise & Salt Act, 1944 by the Finance Ordinance, S970, 'and have sought declaration to the effect that the exemption limit of Rs. 4 lacs for Lahore, Karachi aod Daces and Rs. 2 lacs for other cities in Pakisan isillegal and of no effect being discriminatory. 21. In Constitution Petition No. D-26 of 197?.. the petitioners North Western Hotel, have stated that they are raaning a residential'hotel, provid­ ing residcDce, and articles of food aod drinks, alcaolle and otherwise, to the lodgers and olfeer guests visiting the hots! for the parpose of 'lodging and eating etc. The hotel has also a licenced liquor bar and restaurant attached, to it for the above purpose. The petitioner has generally challenged the vires of the levy of excise duty on exciseable services and have also ques­ tioned the levy of excise duty oa liquor. 22. In Constitution Petition No. D-29 of 1972 the petitioner, Taj otel (Pak) Limited, stales that it is running a residential hotel providing lodging and boarding, and attached to the hotel are a restaurant and Night Club A where articles of food and drinks both alcoholic and non-alcoholic are supplied. The hotel has a licenced bar. fffaas challenged the vires of amended provisions of the Central Excise & Salt Act, 1 §44 by the Finance Ordinance, 1970, where by the excise duty ob exciseable services has been levied. . 23. In Constitution Petition No. D-220 of 1972, the facts, as stated in the petition, are that prior to November, 1967. Palace Hotel Karachi Limiied. which was a private limited company registered under the Com­ panies Act, 1913 was carrying on business of residential Hotel under the name and style of Palace Hotel. The Palace Hotel was declared to be an enemy firm by (he Government of Pakistan, Ministry of Communication Islamabad by Notification No. S.R.O. 200(R)/67,-dated 7th November, 1967, issued under the Defence of Pakistan Rules and all the assets and propertks were vested in the Custodian of Enemy Property for Pakistan. Subsequent to the vesting of the said properly in the Custodian of Enemy Property for Pakistan, the Custodian took over possession of the property and the running business of she Palace Hotel and continued to manage the said property and business through his agent. Pakistan International Airlines Corporation, till 24!h March, 1972, Thereafter by an. agreement dated 19-11-1972, entered into between the petitioner and the Custodian o! Enemy Property for Pakistan, the said Custodian in exercise of its power ssader the Enemy Property (Custody and Registration) Order 1965", sold and transferred the entire business of Palace Hotel formerly belonging to Palace Hotel Karachi Limited together with all rights,, licences, assets, claims, moneys and' outstanding! to the petitioners with effect from 24th March. 1972. '24. The running business of Palace Hotel, which was taken over by the petitioner comprised of a residential hotel for boarding and lodging together with restaurant and Night Glut, where food and drinks were supplied to the customers Certain rooms of the said Palace Hotel were let out at a fixed monthly rent and to which no services or facilities were rendered by the hotel except the. telephone bills which were paid by the persons in addition to the monthly rent. The petitioners have stated the names of the persons in occupation of the rooms in the hotel with rent paid by them. These are as followas : "I. Baioch Art Centre Water & Electricity Room No. C-I provided, Rs. 500.00 2. New Ceylon Art • Jewellers Room C-3 . --do— Rs. 800.00 3. Pakistan Art Emporium Room C-4 and C-6. —do— ' Rs. 1050.00 4. Wyne Carpets • Room C-5. • —do— Rs. 450.00 5. Miss Parveen Abbas Hairdresser, ' —do—' Rs. .• 500.09 6. Bonds Travel B.ureau HoomC-2.- . . . —do— Is. 900,00 7. Trans Mediterranean Airways Rooms C-9 and C-10. —do— Rs. 800.00 • ' • 8. ZEE Publications ' Rooms'C-13. • —do-— Rs. 700.00 9, Mabs Consultants RoomsC-ir.andC-12. • —do— Rs. 535.00 10. United Bank Limited. • Room A-9. . —do— Rs. 800.00 11. Habib Bank Ltd. Room A-10. __ Refreshment Rooai & Bar, a firm, stale that sbcy are running a liquor bar under the licence issued to them fay the Collector and Director of Excise & Taxation, Karachi under the provisions of the Sind Abkari Act, 1878. They have challenged the demand contained in the notice dated 12 2-1971, for payment of Rs, 3762.75, as being ultra vires the constitution and illegal on the same ground as taken in Constitution Petition No. 91 of 1971. 29. In Constitution 'Petition No. 428 of 1976, the petitioners, R.B Awari & Company Limited, slate {hat they arc running a liquor bar known, as 'Winner Bar' at Frere Ssreet, Saddar, Karachi under the licence issued to (hero by the Collector and Director of Excise A Taxation, Karachi; under the provisions of the Sind Abkari Act, 1978, The petitioners claim that they do not sell food or any other refreshment nor is the same prepared at their premises or sold. They further claim that they do not render any service of any kind whatsoever, except the saie of liquor which is authorised under the licence issued to them by the Provincial Government. They have questioned the vires of the Finance Ordinance, 1970, whereby the Central Excise & Salt Act, 1944 has been amended, imposing excise duty on Exciseable Services, as being ultra vires the constitution and illegal and have prayed a declaration that the excise duty cannot bfc levied on liquor sold by them under the licence issued to them by the Director of Excise & Taxation on behalf of the Provincial Government. They have also prayed for an injunction restraining the Federal Government, respondent No. ! and, the Collector, Central Excise & Land Customs, Karachi, respondent No. 2, from recovering the excise duty ob the sale of liquor by them, 30, In Constitution Petition No. D-519 of 1976, the petitioners, Hoie! Marina, a registered firm, states that :t is carrying on business of a lodging bouse in Karachi. According to it there are 10 rooms and few cubici-es in the Hotel which are let to individuals who are using the same for then residence or as shops or offices. No food is served. It further claims thai i t does not do any careriag in respect of the business in the said premises According Co it evea the Kitchen has been let out on a monthly rent and i l - ursfeer claim that it has noshing to do w : ith the service aad catering. The petitioner, however, assisted in the petition ran • bar is a separate portion cf the room under the licence granted to them under the- provisions of tb Sind Abkari Act. '31. The petitioner further states that on os »bo«t_ 31-7-1976, the Deputy Superintendent or Excises and Land Customs Karachi, who is » subordinate to respondent Ho. 2 came Jo the office of the petitioner asd directed it to charge 15 p«cc0t as dwty of excise os of liqiior ros U, Its business had gone down considerably. It has therefore, challenged tht vires of the levy cf exeice duty on services provided or rendered and also the legality. of the levy of excise doty on liquor sold by them.' It has further prayed to restrain the respondents from levying excise duty on tbe sals of liquor by the petitioner at its bar, 32. -In Constitution Petition Mo, 523 of 1976, the petitioners. ' Messrs Cosmopolitan Bar and Refreshment Eoom s a registered partnership firm, state that they arc holding licence la- sell liquor nd nin a "oar »t. it. premises on Bunder Road. Karachi and that they are not running any refreshment nor do they any catering in respect of sale »nd twpply of liquor nor reodsr aoy services or catering, 33. In the counter affidavit, filed by Sibfe Haider Zaidi, Superintendent Ceatral Excise, Karachi, however, the that the petitioner are not running any refreshment room and bar is denied, It is asserted that they are rendering services, providing facilities and utilities to and for Jheii customers and snacks are provided to their customers. He so stated on the basis of inspection by the Superintendent of the Circle eoneeraed, The pesitioaers have also stated that for some fiz»e Ult Collector, Central Excise and Land Customs, been pressing cbt» petitioners ftjr payment of excise duty. They tstve therefore, challenged the vires of she amending provisions of the Finance Ordinance, 1970, whereby the Excise duty has beea levied on exciseabic services pro vided by amending the Si'nd Salt Act, IS44, They have further ciaimed that their sale never esceedcd Rs. 4 in a year and therefore, they wers not liable to pay central excise duty even if it i foand, otherwise leviable. 34. Tn Constitution Petition No. D-626 of 1976. the petitioner K.M. Mondi, sole proprietor of Ritz Bar. Shahrah-i-Iraq, Karachi, states that hi is running a liquor bar under (he licence issued to him by the Collector, Excise & Taxation. Karachi under the provisions of Sind Abkari Act, 187$. He claims that he does not sell any food or refreshment nor is "ht prepared at she premises, He also states that Assistant Collector, Central-Excise & Land Customs, Karachi vide his notice dated 24-7-1976, called upon him produce books of accounts asd documents spcciScd in. the noiic for enquiry under She Excise & Salt Act 1944 ob 30-7-1976. Thereafter, tbt Superintendent Central by the notice dated 20-8-1976, called upon fbo petitioner to apply for issue of L-7, licence. By another notice bearing Ho. C. No. 16/H3-C.E/76, dated 10-9-1976. teemed by the petitioner os 5-10-1976, the said respondent calculated that the petitioner allegedly hav evaded central excise duty to ihe extent of Rs. 3,23,438.43 and that the petitioner has contravened rules 174, 96' W and '226 of the Central Excis Rules, 1944, 5. The petitioner has therefore, qutioned the demand Collector of Centra! Excise & Land Custom 1 ? respondent Mo. 2 for applying L-7 licence as being illegal, and ha also challenged ihe vires of she provisions whereby excise duty on services provided or rendered has bees levied. 36. The High Court Appeal No. 7! of 1979, has arisen in the foilowing circumstances. 37. The appellant filed a suit, being Suit No. 157 of 1972. againit'Pakistan, Assistant Collector, Ceatral Excise A Land Customs, CustoJisn. Enemy Property for Pakistan, respondents Nos. I to 3 for the following "reliefs j»- (1) Declaration that defendants Nos. 1 and 2 (here respondent Nos, ! & 2} are not entitled to recover any amount as Central Excise duties for any services, facilities and utilities, and. on sales of Ijqaors etc. on Paiace Hotel, owned by the Custodian of Enemy Property for'Pakistan and/or Central Government from 1970 o - 31-3-1972, as being illegal and ultra vires, (2) A decree against Defendants Nos, 1 & 2 (here respondents Nos. 1 &. 2} for refund of Rs. 1,39,126.31 with interest at 9% f rom the-date of suit tiH payment." . 38. ft h averred in the piaint that prior to November, 1967, Palace Hotel (Karachi) Limited, which wns private company registered under tb« Companies Act, carried on business at Kutcfaery. Road (now Dr. Ziauddin Ahmed Road) in Civil Lines Quarter, Karachi, of a residential hotel, known as Palace Hotel. It provided lodging and boarding and attached to it was a Restaurant and a' Nigh; Club called "GOURMENT" , where articles of food and drinks, alcoholic and non-alcoholic and other such articles were supplied. Faiace Hotel had also a licenced Bar. Palace Hotel (Karachi Ltd., was declared to be an enemy irro by the Government of Pakistan. Ministry of Communications. Islamabad,.by Notification No. SRO-20CKR)/ •«7 dated 7th November' 1967, issued under Clause (A) of Rule 182 of tht Defence of Pakistan Rules and . vested all Its properties and assets of alt kisids in the Custodian of Enemy Properly for Pakistan, as ; being enemy property. ; The Custodian of Enemy Pioperty for Pakistan, by letter No, (4) CEP-IJ/46 dated 4th November, 196? signed by the Deputy Custodian for and on behalf of the Custodian of Enemy Property, authorised Pakistan Internationa! Airlines Corporation. Karachi, under paragraph 4 of .the Enemy Property (Custodian ' and Registra­tion) Order, 1965 .to take over the management of the Palace Itytel pri 'his befealf with all. its assets, records,- etc. Ir is also stated that entire management and carrying on of the business of Palace H ote ^ was ^ efe ", after, .taken over and conducted by the Government of Pakistan, as enemy property, by removing the old management and its Directors. It was further averred that the Custodian Enemy property for Pakistan through his authorised Agent,-Pakistan International Airlines Corporation, mansged; the said Paiace Hotei and remained in sole charge thereof from 4th Novem­ ber 1967 till 24th March. 1972, when the Custodian of Enemy Property in exercise of his powers under the Enemy Property (Custody and Registration) Order 1965, sold and transferred the entire business of Palace Hotel, formerly belonging to Palace Hotel (Karachi) Limited together with all rights and licences and all assets, claims, tnoaeys, outstan- . dings, to the plaintiff effective from 24fh March 1972. The appellant therefore took over the Palace Hotei from Pakistan International Airlines Corporation and assumed charge with all assets, rights, licences, privileges as owners thereof from that date, p was also stated that the Assistant Collector of Centra! Excise and Land Customs, Division f, Karachi, had required the Palace Hotel So pay Central Excise dunes on services provided or other facilities and utilities rendered including sales of liquors, food, etc. at 10% from June 1970, onwards and had further required monthly returns to be made, in pursuance ef the provisions of the Centra! Excise and Sal! • Act of 1944, as amerined by Finance Ordinance IX of 1970 and again b> Finance Ordinance XIV of 1971. The total amount so demanded as being due for services etc. rendered in the said Hotel including sales in the bar, Night Club of the Palace Hotel from June 1970 upto March 1972 had been worked out and/or as demanded amounted to Rs. 2,94,898.71. 39, The appellant cJairned that as a matter of fact no amount could legally be levied or required to be paid by Palace Hotel as payable to the Centra! Government as Central Eicise duties in pursuance of the provisions of Central Exise and Sait Act, 1944, as amended in 1970 and 1971, for the reason that during the aforesaid period Palace Hotel as an enemy property had been vested in the Custodian of Enemy Property for Pakistan on behalf of the Centra! Government and the business of the said Palace Hotel was thus' operated, run and carried dn by and/or on behalf of the Central Government. No Excise duties therefore, it was asserted, could be levied or demanded from the Central Government or the Palace Hotel. The appellant further claimed that the demand for the payment of Central Excise duty for services etc, rendered by Palace Hotel a$ dcroa'nded for the period Jane 1970 to'March 1972 amounting to Rs. 2,94,898.71 was ab tnltio illegal and ultra vires and wa» not at ail leviable under the provisions of sections 3, 3-A and 4 of the aforesaid Excise and Salt Ac't 1944, as subse­ quently amended. ' The stand of the appeiiant was that the levy of Excise duty by the Central Excise and Land Customs Coileciorate at Karachi appeared to have been made by mistake, and/or in ignorance of the true legal position'. The Custodian of Enemy Property for Pakistan, who was running the Palace Hole! on behalf of the Central Government as enemy property, was immune from payment of any duties under the aforesaid- Act, 40. The appellant further claimed that between 22nd July 1970 and lltb April 1972 Palace Hotel had paSd'a tola! sum of Rs. J.39,126.31 as the Central Excise duties, At the time when the appellant took over the possession of Palace Hot?! on 24-31972. further sum of Rs. 3,55,772.40 was being demanded as arrears of Central Excise duties and the appellant as being the purchaser of Palace Hotel was required to pay this amount. Tie appellant further .asserted that immediately after the appellant took possession of Palace Hotel, the Assistant Collector, Central Excise and Land Customs, Karachi, coming Jo know of the purchase of Palace Hotel by the appellant, issued on 3-4-S972 an .order for attachment or seizure of the moveable assets lying in the Palace Hotel for recovery of Rs. 1,55,772.40, The appellant claimed that the appellant bona fide believing ifaat the said amount demanded for Centra! Excise duties was legally due and payable, requested the Assistant Collector, Central Excise and Land Customs, Karachi to give time to look into the matters and offered to give Bank Guarantee and to pay the amount by 30th April, 1972. According to the appellant it was done to avoid attachment and seizure of assets of Palace Hotel and accordingly furnished Bank Guarantee of First National Citv Bank, Karachi by letter of Guarantee dated 3rd April 1972. and aiso furnished Guarantee Bond dated 4th April 1972, of the same Bank for payment of the amount of Rs. 1,55,772.40 by 30th Aprii 19-72. The anpp'lant further claimed tba being ' that transfiree of she Palace Hotel with all rights..privileges, assets, claims etc. it was entitled 10 claim refund of Rs, h39.S26.31 as having been illegally recovered from or paid by Palace Hote! to respondents Nos. 1 and 2 and further ;hat the appellant could not be required to pay as arrears of Central Excise duties the above mentioned sum of Rs. 1,55,772,40 which was claimed so be due and pa>able" to Central Excise and Land Customs, Karachi from September 1970 to June !9?L 41, Respondents in their joint written statement denied thai the busi­ ness of Palace Hotel was taken over and conducted by the Government of Pakistan. It was averred that the excise duty could be legally levied and was lawfully demanded from the Psiace Hote! for the services provided or rendered and that on 24-3-1972, a sum of Rs. 1,55,772.40 was due from 'the PaSace Hotel, Karachi Limited;'after deducting the amount,of excise duty on the services already paid by the appellant and thai this liability taken over by the appellant. It was further averred that on 18-4-1972, the appellant wrote a letter to the Collector. Centra! Excise & Land Customs, Karachi, in resfieci of the excise duly recoverable from she Palace Hote! for the period beginning from 1-9-1970 to 30-6-1972. and that tbe appellant offered to furnish.bank guarantee in the said amount in three, instalments, which offer, it was claimed by ihe respondents, was accepted by the respon­ dents and accordingly the appellant had paid the first instalment in tbe sum of Rs. 59,658.7$, but did not pay !he remaining two instalments.; Oti the pleading of the parties she following issues and an additional issue were frame.d :— "1. !s--the Palace Hote! immune from payment of Excise Duty as alleged in pa fa 8 of the plaint '? 2 Are the plaintiffs' liable to pay Ecise duty on services rendered prior te 25th March, 1972 and thereafter ? ' 3. Are the plaintiffs bound by the Bank Guarantee given by them to Defendants No, 1 and 2, 4. Have she plaintiffs arjy caase of aciion against Pefeodsais Ifo. 1 and 2 . 5. To what relief, if any, tbe plaintiffs are entitled ? Additional Issue : "Whether the suit is barred under section 10 of the Central Excise & Salt Ac?. 1944"" 42, Before the learned Single Judge issue No. i and tbe additional Issue were not pressed and therefore, they were decided against the appellant. The learned Single Judffe, however, decided the remaning issues also against the appellant and In consequence dismissed the suit but without costs. Tbe appellant has therefore, filed the present appeal. 43, We heard M/s. Iqba! Kazi, Mr. Qamar Muhammad Khan, Mr. Mamoon Kazi, Mr. Arif Hussain. Mr. Mansoorul Arnn and Mr. Mobsin Tayab Ali Advocates for the petitioners, the last named Advocate also in support of the High Court 'Appeal, and Mi. Abdui Sattar Sheikh Add! A.G , Sind, Mr, Hamid Hussain and Muzaffar Hassan Advocate, for the respondents, 44, Mr. IqbaS ICa^s tof 'ear-.'ed i->u(>i>il i. e^ciders. "o It was at first a genera! Word course, very comprehensive, as the writer of dictionary has to include all possible uses to which the word is put. But in Comroinon paxlanc the duty of excise is more or less connected with home manufacture or production, even though its collection may be delayed till a late? stage." Firstly, in Reference No. I of 1938, (AIR 1939 F.C. 14) Entry No. 45 of list !, Schedule 7th to the Government of India Act 1935, cams ap for consideration which was as- follows : ' . • "Duties of excise on tobacco and other goods manufactured or pro­ duced in India (Pakistan, substitute after independence of sub­ continent in Pakistan) escspt (a) alcohol liquors for human consumption ; (fr) opium, Indian hemp »od other narcotic drugs and narcotics ; nomnarcotic drugs. (0 medical and toiSet preparations containing afcobol or say sub­ stance included in subparagraph () of this Bmry". But here the relevant Entry is Entry No. 43 (6) la ihe III Schedule to Ii s 62 Censtitution which is as follows : "43(4) dutis of excise (including duties on salt, but not including duties on alcoholic liquor, opium or other narcotics) ;" 52. It will be seen from the above two quoted Entries that the pcwer given to the parliament under the Government'of India Ace, 1935, to levy duties of excise was limited to tobacco and other goods Qjanufsetured or produced except alcoholic liquors for human consumption, opium and Indian hamp and other narcotic drugs and narcotic etc,, wfaiie under the 1962 Constitution the duties of eaeise was not subjected to any such limitation. Some remain the position under 1973 Constitution. (See Entry 44 of the 4th Schedule). Therefore, the observations of Gwyet C,J. in AIR 1939 F.C. 1, be understood in the contest of the scope of Batty Mo, 45, « there wm reason then to adopt narrower ajeaaing of tfas term or word 'excise is view of the fact that sach duties were limited to manufacture or produc­ tion of tobacco and other goods. Secondly, Supreme Court of Pakistan seeros to hsve accepted approved the wider oseaniag of the expression 'duties' of excise" is Muhammad Younus v. Central Mo&rd of Rnenue, Gmeritmeni of Pakistan and others (PLO 1964 S.C, 113) while considering the various .provisions of Central Excise and Salt Act 1944 and in Colony Sarhad Textile Mills Ltd., v. Superintendent Central Excise and Land Customs (1979 S.C.M.R. 640), In the first named case while considering in the case AIR 1939 Federal Court page 1, on which reliance was placed heavily by Mr. Iqbal'Kazi, Hamoodur Rahman, J. (as his Lordship then was) observed as follows : "This argument is based mainly upon certain observations of the learned Judges of ihe Federal Court of India in a reference made by the then Governor-General of India, in the matter of the Centra! Provinces and Benar Sales of Motor Spirit and Lubricants Taxation Act, 1938(1). In this reference the validity of ?he above-mentioned Provincial Act came to be questioned on the ground that the tax pur­ ported to.be imposed was really in the nature of an excise duty in respect "of which the Provincial Legislatures had no power to legislate. tfceir competence being limited to levying taxes on-the sales of goods • and ob advertisements. It was in this connection that the nature of a duty of excise came to be investigated into by the Federal Court of India and it was observed that the expression "duty of excise", in its primary and fundamental sense, signifies a tax on goods produced or taaaufaeiured in the taxing country and intended for home consump­ tion, as distinct from customs duties on articles imported into the country from outside, though it has now been examined to cover a large variety of other duties and taxes which would not strictly come within the dictionary meaning of thai terra such as a dog tax, a vehicle tax, 8 hawker's licence tax, for wine licences and pawn broker's licences, We, nevertheless, find it difficult to accept the further corollary that was sought to be drawn by the learned counsel from the primary connotation of the expression "duty of excise", namely, that the duty of excise must be a duty which has from, iis very nature to be iaif>osed on home-produced goods at some stage which has some connection with production and manufacture. In theory, we are unable to see why there should be any such limitation as to the stage at which a duty of excise is to be realised", la the second named case Dorab F. Fatel, J. afier reviewing Indian,' Canadian, and Australian coses was pleased to observe that 'excise is a] •word of wider import. We are bound by the observations. Therefore, the'argument of Mr. Iqbai Kazi that the Central Legiblarur under 1962 Constitution had no power to levy excise doty io respect o excisable services as the same are not covered by the term of'duties o: eseise has no merit and aceordingly, we cannot accept the same la view cf the above opinion we need not discuss the cases ATR 1942 P.C. 33 and AIR 1945 P.C 98. Consequently, the opinion of the learned Single Judge in the judg­ ment impugned in H.C.A. No, 71/79 reported as PLJ 1980 Karachi 202 on this point is correct and must therefore prevail. 53. We easy, however, record that Mr. Hamid Hussain, iearned counsel for the respondent besides submitting that the ievy of duty on excisable services is covered by the expression 'duties of excise', submitted that under Article S3! (2) of ihe 1962 Constitution, the Central Legislature had power to make laws for the whole or any part of Pakistan with respect to any matters not enumerated in the Third Schedule to the 1962 Constitu­ tion bat we need not examine this submission fot we have already clearly held that the expression 'duties of excise covers impugned duty 54. Taking up the second point of Mr. Iqbal Kau that in view of the provisions of Entry 43 (b) of the Third Schedule of 1962 Constitution the Federal Legislature had nr> power to ievy excise duty on liquor, the argument of Mr. Iqba! Kazi was that by levying excise duly on liquor, the Cen ral Legislature has legUlated'in respect of a matter which was spenfically excluded from i's purview. He scbmitted that the levy of duty o>> services rendered or provided in a piace where liquor is sold was in fad levy of du'v on liquor. He further submitted that it is settled principl" Description of Services Rate of duty 3 Services rendered by Hotels and Restaurants— "(4). AS! services, facilities, and utiiities. including 10 per cent catering, supplies and merchandise provided or of the rendered by an bole!. charges. Bxp!ana$i0n~~-"1;ioitr' means an esfablishernent, organisation or place where rooms or suites of rooms are let out on rent, whether or not it-has any arrangement for catering or a restaurant or provides any other services, facilities or utilities, by whatever name called. {2} All services, facilities, and utilities, including 10 per cent supplies and merchandise, provided or rendered of the by a restaurant. ' " charges, "£A/>/cwtf/70«.—"Restaurant" means an establishment, organisation or place where food o? drinks are sold, whether, or not it provides any other services, facilities.or utilities, by whatever aanae called, sod includes a night club and cabaret." It will be seea frcia the above quoted definition that section 2(<&0 it-i aeif refers to excisable services as specified in Part I] of the First Schedule.L The services specified ia Part II of the First Schedule have, therefore, byP reference become part of the definition of excisable services and niusijj therefore, be given effect. Further, a schedule in aa Act is a mere question of drafting, a mere • question of words. The schedule is as much a part of the statute and is ta«eb aa enactment as any other par.t and if an enactment in & schedule y contradicts an earlier clause it prevails, [See CRA1ES ON STATUTE LAW, Sth Ed. page 208. wherein reliance is placed on the observations of Brett, LJ, in Attorney Genera! v. Ltmplwgh] (1878) 3 Ex. 214]. So far as the cases vited in support of this point are concerned. We would first take ap Mahci Rom and others v. Emperor (AIR 1918 AH 168), In this case it was Said down that it is' not competent to a Court to extend the words of an enactment by const: uticn. But in the present case there is no question cf extending the words of an enactment by constructor!. Tie next case cited was Muneshwara Nand v. State (AIR 1961 \ l . 2 : ») which Liyt down she following principle. "Schedule, forw a part of the statute and znust be read together with it for s!i purposes of construction. Bui expressions in the Schedule cannot control, or prevail against the express enactment. If there is any appearance of inconsistency between the Schedule and'tbe enact­ ment the enactment shall prevail and if the enacting part and the Schedaie cauBOt be sade so correspond, the laiter must yield to the' former," However, .we do not find any conflict between the provisions of the Act and its Schedule. In fact the provisions of the Act and its Schedule read together are quite in harzwony wiifi each other. This case is therefore, also of no help to the petitioners, In Pir Gkulam Rasul v. Chief Land Commissioner, Lahore and others {Supra}, the principle of interpretation, of statute is stated as follows :— "If there is inconsistency between the Regulation, which is the' main enactment," and the rales thereunder which rules are to be deemed to b.e part of the main enactment itself, then the two provisions of the enactment and the roles should be reconciled as best 'as they can. Bui if the conflict is incapable of resolution, she rule which should apply is, that the principal enactment should be treated ss the maia provision and the Orders or Rules made under the enactment, as subordinate provisions " This case is' also distinguishable for the- aforesaid reason. This point also has therefore, bo substance. 57. Taking up the fifth point, by Mr. Kml, namely. that the Government has bo power to recover excise duly after coming into force of 1973 .Constitution, the argument of Mr. Kazi, was' that, : ?be Finance Ordinance, 1970, tJhrouglb which the excise duly on exciseable services was levied, was not a valid piece of legislation having, been promulgated by General Ysfeya Khais who declared to be a ' usurper by she Supreme Court of Pakistan ia Jlltmfs case (PLD If 72 SC 139). Mr. Iqbal rcjied on a Division Bertcfe's decision of this Cosirt 10 Shamimuf v. of Pakistan oshsrs (PLD 1980 Karachi 345). On .the other hand, ii was ted by Mr. Hussaiu, and Mr. the has been successively «aved by the Interim Constitution by its Article 280, 1, 2, sad 8 and by Article 268, claases (1) and (?) of fig 1973 CoBstltutioa, The relevant clauses of tfe«e Articles read g$ follows ; Article 280 of As laserira Coostitefioa of If 72 : "280 (!) Except as provided by this Article, alt existing laws shall, subject to this Constitution^ continue in force, so far as applicable and with the necessary adspiaiioes, until altered, repealed or amended by the appropriate Legislature. (2) The Proclamation made an the twenty-fifth day of March, 1969, is revo_ked with effect us from the commencing day, aod the Orders specified in the Sixth Schedule and any Orders amending those Orders are repealed with effect as from that day, but this clause sbali not affect any existing laws made under (hose Orders. (3) • ................. .. (4) ... ' . ........ ... (5) ... ...... .... (§) In this Article; "existing laws 5 means si! iam'S (including Ordin­ances, Orders-in-Councils, Orders, ruics, bye-laws, regulations ant! Letters Patent constituting a High Court, anti any Notifications and other laga! instruments having the force of law) in force in Pakistan or any psrt of Pakistan, or having extra-territorial validity, Immediately before she commencing day". Article 268 of the 1973 Constitution : "268,--fi) Except as provided by this Article,, ali existing laws shall, subjeci to the Constitution, continue in force, so far as applicable and with the necessary adaptations, uniiJ altered, repealed or amended by the appropriate Legislature. . " (2) ................................... - ..'. ... . ......................... (3) .............................................................................................................. (4) . ......................................................................................................... (5) .(6) (?) In thi« Article, "existing laws" means a!! laws (including Ordin­ ances, Qrderj-in-Council, Orders, rules, bye-Jaws., regulations and Letters Patent constituting a High Court, and any notifications and '• oilier legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial validity, immediately before she commencing day". Explanation. —In this Article, "in force", in relation to any law, means having effect as law whether or noi the law has'been brought into operation"", A perusal of clauses (i) and (8) of the Interim Constitution and cfausesjj (I) and (1) of Article 26S of the 1973 Constitution clearly shows '.hat ai! thsi existing laws have been saved 'by the said provisions. Moreover, in ihej csse of Asma,/Hani's {Supra), Hamoodti!' Rehman, CJ. following !he principle!/ of condonation, condoned all acts and legislative measures which wer-J in accordance with, or could have been made under the abrogated con-j • stitution in these words, which appear at page 207 of the report : "Applying this test I would condone (I) ail transactions which are past and closed, for, no useful purpose can be served by reopening itu-in, (2) ail acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous - legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for (he ordinary orderly running of she Staie and ail such measures as would establish or lead to the establishment of, in carcase, the objectives mentioned in the Objectives Resolution of 1954". As regard? PLD 1980 Karachi 345,'ei'ed by Mr. Iqbal Kazi. it may foej stated in .that case inter alia the validity of Martial Law Regulation No. 103! came up tor consideration, besides the question whether Central Govern-' ment could legislate sn reine^i of acquisition of the propeny. We have ,, already held that the amcndmeuis in the Central Excises & Salt Aci, 194^, ' by the Finance Ordinance 1970, was within the competence of tb-j Centra! Legislature.. This case therefore,-does not advance Use case of she pt-ii-' tinner to any successful conclusion |be answered by considering whether she intention of the Leg ; 5la:ure on this jpoini can be gathered from other parts of (he statute. (Criies en Siatute Law, 5th Ed, p. 171). In oar opinion the intention of i he Legislature 'ha r . i; intended to subjeei 10 duty inter alia the room charges is clear if '.he charging section is, read in ihe light of the definition of the expression 'excisable services along with the relevant provisions of the First Schedule, Pan II, 62. Taking up the last ground vaken in C, P, No, D-390 of 1971, that fhe exemption limit from payment of excise duty on turn over of Rs. 4 lacs granted to hotels and restaurants in Karachi and Lahore as against of Rs. 2 lacs to hotels and restaurants situated in other cities is Il'egal being discriminator), the point seems to be based on provisions of jjeqtta! protection of law and equality before law enshrined in Articles 4 and (15 of 1973 Constitution. However, mere differentiation or inequality in ^'treatment does not zfmoun! to discrimination in contravention of the above provision as pointed out by jShahabuddin, J. in Zaln Noorani v. Secretary of National Assembly [P L D 1957 S. C. (Pak.) 46] for the provisions prohibit only unreasonable or arbitrary differentiation having no rational basis (with reference to the legislation. The principal of equals iy does not amount jto equality of operation of legislation upon all citizens of State as laid Mown hy the Supreme Court of Pakistan in Jibendra Kishore v. Province of R Easi Pakistan [P L D 1957 S. C. .(Pak.) 9], If also does not mean that every law must have universal-application for all persons who are not by nature, attainment or circumstances in the same position and ihe varying needs of different classes of persons often require separate treatment. See: Slate of Bombay v.' P. L. Sahara (A I R 1951 S. C. 318). Syed Sharifuddin Pirzada in his -book entitled "Fundamental Rights and Cons­ titutional Remedies in Pakistan", 1977 Edition, pages 371/372 while stating she above principle has staled ihe further principle that the equality clause forbids ciass legislation but does not forbid reasonable' classification for the purposes of legislation (Sakhawat AH v. Slate of Orissa (A I R 1955 S. C. 166). He has however, pointed out (he conditions for application .of the above said principal and other principais as follows : (a) the classification is natural and reasonable and bears a fair substantial relation to (he object of legislation ; (b) the classification is not arbitrary or capricious ; (f) a classification that proceeds on irrelevant consideration, such as differences in race, -colour or religion will certainly be rejected by the Courts ; (d) the classification may be founded on different bases, namely, geographical or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of classification and the object of enactment under consi­ deration ; • (e) it is not required that the legislative classification should be scienti fically or logically perfect , (/) if the classification is relevant to' the object of the Act, it must be upheld unless ihe relevancy ib. to remote or fanciful ; (g) a classification is not unreasonable merely because one individual or company is treated differently from others by legislation ; (A) the power to stake a classification can be exercised not only by the Legislature but also by administrative bodies seiing under the Art, la the present case the petitioner has no where alleged in the petition timj! the exemption from payment of excise duty provided to classes of botch),, and restaurants on the basis of turn over is arbitrary or capricious or is 'based on irrelevant consideration or ia in violation of any other conditions! mentioned above. We therefore, find that this point also has no substance. Accordingly, we dismiss all the petitions and the High Court Appeal leaving the parties to bear their on costs in -she circumstances of the cases, (TQM) . ' Pettttens ct Appeal iilxmisM^,

PLJ 1§S3 PLJ 1§S3 53 Present: naimuddin, J GKULAM MUSTAFA—Applicant versus and 7 Others—Respondents Revision Application No, 130 of 1981, decided on i«-!-?982, ' .(i) Act of 1964)—

S. 17 and Civil Procedure Code (V of 1908}—Ss, 115 & 3™Faniii¥ Court—Power to revise orders—Civil Procedure Code—Applicability of — Held: Applicability cf CPC so except sections 10 &!! having been excluded under Act, orders sassed by Family Courts or by Appellate Courts (being courts not subordinate to High Court within contemplation of provisions"of S. 3 of CPC}, slot to be revised under S, !I5 of C.P.C, [Pp. 55 & 56} J PLJ 1981 SC 795 ; FM I9SI Lab. 583, PLJ 1975 X&r. 114 , PLD 1972 Kar. 410 ; PLD-197.1 Km, IS8 ; pL!> !?71 Lah. 875.; PLD 1970 'tab, 641 & - PLD 1967 Lah. 977 ref. ns of section 3 C.P.C. If any precedent is needed reference may be •had !o the decision of Lahore High Court in Wajahat All -Hostile v. 'Mst. Ghazala (PLD 1970 Lah. 641). In this case Mr; Justice Nasim Hassan Shah -\ referred to she observations of" Qadeeruddin Ahmad, J. (as he then was) ia .Begum Za!xa!> Tiwana v. Aziz Ahmad Waraich {PLD ! 967 Lab. 977), which are as follows : "<n order to provide a .cheap and speedy remedy 10 married women, orpfians, sisters and daughters, who are general!}' handicapped for lack af funds, it appears necessary to set up Special Family Laws Courts, . which will not be,hide-bound by the technicalities of

.h-e C.P.C. or the Evidence Act. They should instead follow a very much simplified procedure. We agree with the proposal made by she Commission oa • t marriage and Family Laws to the effect that the.Lagislature should lay down a fsw fundamental principles for she guidance o!" such Coons and the remaining procedure should be regulated by simple rules to be learned by Hie High Courts. The object aircsed at shou'd be that subsiiiiiia! justice should dc ensured to the parties %vfeo wsli have reeourss 10 ihe-.s Courts, and therefore, there should be a certain amount of flexibility in she procedural rules that shall govern these Courts." Au<i then observed ; ''This intention would be frustrated 'if every case was liable lo be carried to the High Couri under section iiS C.P.C. The objeM of Shis Acs is to provide a speedy method of settling family disputes and if orders of interlocutory character are to be brought to the High Court, • this object would be defeated. Under the provisions of the Act the Family Coorl is subordinate to she High Court-if it is presided over by a person who is or has beers District Judge or an Additions! District. Judge and to she District Court in any other case, vide seciion J '4 cf his Family Coons Act, .But rncreJy because of this subordination to ihcli;gb Court H does not automatically follow shai the orders passed by such a Court become revisable by the High Court. The revisionai power is contained in section i 15 of (be C.P.C. However, by virtue of" section 17 of the Act, the application of the provisions of the Code of Civil / Procedure are excluded, except for certain limited purposes which are specified in the Act. Moreover, she Civil Procedure Code does not, as provided in section 4 override any special'or local law. The provisions of section 17 of the Family Courts Act must, therefore, be given :heir fdi effect with she result that even if she Family Court is regarded as a Court subordinate to the High Court, the effect of section 17 of she Act is to exclude~the orders of the Family Court from the operation of section 115, C.P.C. and the said provision of law is not available for obtaining revision of orders passed by the Family Court." I v, i'< iuc j Juope «.mop£ others placed reliance on the Full Bench • udt;/ 1 •! s ( Ldti >rf fich Ccu't in the Corporation of the City of Lahore v, Uu • ii'a H gMi' (PJ ') «'""2 Lah. 987). is of section 3 of sht Code of Gvii Procedure Judge at'pages 644 acd 645 cf the report as "I cannot accept the broad and unqualified proposition that since it ii held that an officer, authority, or functionary is exercising the functions of a Court in a relation to rights that may be called "civil" that officer, authority of functionary must be held to be subordinate to the High Court. The result of any such finding would be that all Courts which adjudicate upon the civil rights of subjects whether in cases between the subjects themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere of subordination not only the revenue Courts which admittedly decide civil dicpute between the parties but also the income-tax authorities which determine the subject's liability to the State". I respectfully agree and may add that the words "subordinatt Court" in section 115 of the Code of Civil Procedure ought to be understood in the sense given to thea? in section 3. otherwise the words "for the purposes of this Code" would be rendered useless. Since section 3 is enacted for the purposes of the Code and deals with all the civil Courts aid their subordination to one another, the inference appears to be irresistible'hat no Court other than that mentioned in it can be said to be subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure." "Mr. Mumtaz Hussain, Advocate, appearing on behalf of the Advocate jOencral in response to a notice issued to the latter drew my attention to three judgments from the criminal jurisdiction in support of the view that a Court or Tribunal of an "inferior" rank cannot be deemed to be subject to the revisions! jurisdiction of the High Court only because of its being inferior in rank to the High Court. In Hari Mesh v. State [PLD I959SC. (Pak.) 30?} a Special Magistrate appointed under the East Pakistan Food (Special Courts) Act, 1956, not being a First Class Magistrate appointed under the Criminal Procedure Code was held not to be a Court from whose judgment an appeal would lie under the provisions of section 408 of the Cr. P. C. In Sakhi Muhammad v. Wajid All etc. (PLD 1964 Lab. 426) it was held that a Court exercising criminal jurisdiction under special statute with regard to offences crcated-by such statutes cannot be regarded as inferior ctimina) Court simply because under special Statute such a Court is "deemed to be a Court of Magistrate of the 1st Class under the Code of Criminal Procedure, 1898". The principle mentioned above was again reiterated in a recent judgment reported as Qazl Saltern v. Manager, National Products Co. (PLD 1970 Kar. 33) where orders passed by the Industrial Court were not held to be revisable under sections 435 and 439 of the Criminal Procedure Code by the High Court. The learned Judge in the course of his judgment observed "the crux of the whole question i.e. whether the case is tried by a special kind'of tribunal specialty brought into existence by a statute or it is tried by a Court of Magis­ trate conslituiad under the Criminal Procedure Code. The Industrie Court is not a Court constituted under the Criminal Procedure Cod' but it is constituted under the Industrial Disputes Ordinance am despite the fact that the powers of a First Class Magistrate for trial o the offence are conferred upon it, no revision is maintainable" Although these authorities do not deal with the question under consi deration and are, not. therefore, strictly relevant, they do throw som light on general proposition that a Court which is inferior in rank t ill High Cjurt \s treated as subordinate to it for purposes of exerci; of rcvisionai jurisdiction only if it has been declared subordinate to it by a statutory provision." 16. The above view has be- i followed in a number of cases. 1 may bere refer to some of the reported cases. The view taken by Nasim Hasan Shah, 1. has very recently been followed by Muhammad Ilyas, J. in Azhar Hussain v. Chartered Bank, Faisalabad and 17 others (PLJ 1981 Lab 583). In Mst. Tehseen Akhtar v. Mahmoodul Hassan (PLD 1971 Lah. 875) if was followed by A R. Shaikh, J. Reference may also be had to Farlda Parveen v. Qadeeruddin Ahmed (PLD 1971 Kar, 118). The argument advanced in this case was that a District Court not having been defined In the West Pakistan Family Courts Act would be the same Court which is defined as such under the Civil Procedure Code and that, therefore, a revision woyld He under section 115 of the Civi! Procedure Code, However, Muhammad Haleem, J. (as he then was and now Acting Chief Justice of Pakistan) observed that "even though it is a court subordinate to the High Court its decision on appeal under Section 14 of the said Act cannot be said to be a case decided within the meaning of Section 115 C.P.C. as the application of the Civil Procedure Code has been excluded by Section 17 of the said Act. It is, therefore, plain that there is no scope for a revision to the High Court against the appellate judgment of the District Court under Section 114Jof the said Act." I may also refer to a Full Bench decision of the High Court of Sind & j -- Baluchistan (Karachi Bench) in Mst. Zaibunnisa v. Mohammad Muzzamil (PLD 1972 Kar. 410) wherein Dorab Patel, J. who while delivering the opinion of the Court; at page 420 of the report observed as follows : "Secondly, a revision is a remedy under the Civil Procedure Code. But as section 17 of the said Act has prescribed that the provisions of the Civil Procedure Code, except sections 10 and 11 shall not apply to Family Courts, the applicant cannot invoke section 115 of the Civil Procedure Code, and that was also the view of my learned brother Muhammad Haleem, J. in Mst. Fartda Purveen v, Qadeeruddin Siddiqul (PLD 1971 Kar. 118)." 17. The view taken in Wajahat All Hasme, Tahseen Akhtar and Farlda Purveen's cases was followed by Tufail Ali A. Rahman, C.J., io Syed Shamim Ahmad v. Mst. Rtaz FafThia (PLJ 1975 Kar. 1J4) in these words: ''1 have therefore, come to the conclusion with respect, that all the three cases, which have taken the view ihat no revision of the present kind lies to this Court, were correctly decided and 1 see no reasons whatever to disagree with them." 18. The view taken in Wajahat AH Hasnfe's case has also been approved by the Supreme Court in a very recent judgment, delivered on 2-6-1981, in the case of Muhammad Ayub Bul( v. Allied Bank Ltd., Peshawar and others (PLJ 1981 S. C. 795) and it was observed in relation to that case: "We think that the principle enunciated in the above case is also applicable to the present situation." It may bs mentioned that in this case a revision application under »ection li 5 CPC was filed against the interlocutory order passed by the Special Judge under the provision of the Banking Companies (Recovery of Loans) Ordinance (XIX of 1979) and the question for consideration was whether the same was revisable under section 115 of the Ordinance or not. ^o case, wherein contrary view was taken was brought to my notice nor have i U oiw?a any. Thus the point is well settled. 19. However, it was ayu-iiucv. by Mr. Mohammad Sharif that the order impugned in this revision applicanou wss passed in execution pro cecding by a Civil Judge and not by a Family Court judge. t»ut tlac sub­ mission overlooks the provisions of Section 13 of the West Pakistan Family Courts Act. as the rounder a decree is to be executed by the Court passing it or by such other Civil Court as the District Judge may by special or general order directs. In this case the decree is being executed by the Court which passed it and which is no doubt, a Family Court. 20. I therefore, hold that this revision application is not main­ tainable. 21. In view of the above finding it is not necessary to deal with and decide the points raised by Mr. Mohammad Sharif. However, I shall deal with them as well, as in my view even no merits this revision application has no substance. 22. Now, taking up the case on merits as regards the first ground that security furnished by the applicant was in the nature of a continuing guarantee and the applicant could revoke the same, I may at the very outset state that although the provisions laid down in Sections 129 and 130 of the Contract Act are not attracted to the surety bond or the security furnished in favour of the Court in the same way as they apply to a guarantee given in favour of a private party because the creditor in the ease of surety bond executed in pursuance of section 55, C.P.C. is the Court and the obligations of the surety cannot come to an end merely by giving a notice of revocation as contemplated in section 130 of the Con­ tract Act, but the principle in appropriate case can be applied as laid down in Amanullah Khan v. Syed Masood Alt Naqvl and others [PLD 1958 (W.P.) Kar. 393]. 23. The question whether or not a particular transaction is a continu­ ing guarantee depends on the terms of the instrument. A perusal of the order for compliance of which security was furnished shows that security was furnished for payment of the amount of the decree in instalment of Rs. 500 each, the guarantee was not for payment of Rs. 500 per month in future only. Now, in accordance with the provisions of section 130 of the Contract Act there is no doubt that a continuing guarantee as to obligation arising in future can be revoked but a guarantee which is for obligalion already undertaken or incurred as to the same it cannot be rcvokc4- The point is well illustrated by ithe illustration "a" under Sec­ tion OQ of the Contract Act which is as follows : C-r-— A, in consideration of B's discounting, at A's request, bills of exchange for C, guarantees to B. for twelve months, the due payment all such bills to the extent of 5,000 rupees. B discounts bills for C to the extent of 2,000 rupees. Afterwards, at the end of three months A revokes the guarantee. This revocation discharges A from all liability to B for any subsequent discount. But A is liable to B for the 2000 rupees, on default of C." 24. The principle is that if the consideration for a contract of guar­ antee has flowed once for all and is confined to a single transaction, it cannot be extended to a series of transaction. Where the guarantee has been given for the performance of a de6nitc engagement, which has already come into existence and is not contingent and the consideration for which is not variable as the result of future dealings between the parties the contract is not otih of continuing guarantee. (See Hasan AHv. WaHuIlah and another (AIR 1930 All. 730). 25. I am also fortified in my view by the decision in Bhagvaitdas Bangildas Vml v. Secretary of State for India (AIR 1926 Bom. 465). In this case a licence to sell liquor for a period of three years was granted to one 'F'. 'Under the terms the licence money was to be paid in instalments. The applicant stood surety for F. It was held that the guarantee was not a continuing one and the plaintiff was not entitled to put an end to his liabi­ lity by arbitrarily revoking his guarantee. 26. My view also finds support from a Division Bench decision of this Court in the Province of West Pakistan v. Shamsuddln and (mother [PLD 1966 (W.P.) Kar. 29?1- In ibis case the lease of 4and for 3 years in consideration of tease money payable in three equal instalments was granted. The surety for lessee in unambiguous terms bound himself for entire lease amount in surety bond, as in she present case. On these facts it was held that mere reference to instalments in rtase deed could not render transaction to be serious of transactions and it was further held that the guarantee related to a single transaction and was not a continuing guarantee. 27 The learned counsel for the applicant however, referred to Durga Priya Chtwdhury v. Durga Pada Roay & others (AIR 1928 CaJ. 204). id this case 'A was appointed for the purpose of collecting rents of plaintiff Zamindar and'B'held himself responsible for the due collection and payment by 'A of those rents to the extent of a certain sum by a security bond executed by him. On these facts it was held it was a continu­ ing guarantee. But in the above cited case the rent was to be collected in future and not that the rent was already collected. But in the present case decree was already passed against the judgment-debtor the payment thereof was secured by the applicant in certain manner i.e. by instalment of Rs. 500 per month. Therefore, this case is distinguishable. 28. Mr. Mohammad Sharif also relied on the case of Amanullah Khan v. Syed Masood Ali Naqvi and others {PLD 1958 (W.P.) Kar. 393]. But this case is of no help to him as in this case the surety had stood guarantee to produce the judgment-debtor in Court in future which was a continuing obligation and which could be terminated as to future obligation by placing parties in the same position in which they were and accordingly it was held that the guarantee was a continuing guarantee. 29. Mr. Mohammad Sharif also referred to Sherumal Chainrai . H. Greenfield (AIR 1930 S!nd 316). In this case a suit was filed by the plaintiff, who was the sole trustee of certain premises leased to the United Club and in the use and occupation of the Club from May 1922 to March 1924, for arrears of rent of the premises from July, 1923 to March, 1924. Defendants I and 2 were respectively member and Honorary Secretary of the Club aud the plaintiff sought to attach liability to them for arrears of rent as defendant I negotiated the lease of the premises and defendant 2 was the Honorary Secretary of the club. The Additional Judicial Comaiissioner held that defendant 2 was not liable for the rent and dismissed the suit as against him. As regards defendant 1, it was held that he was liable for rent as a guarantor, but that he had got rid of his liability by « disclaimer contained in a letter sent to the plaintiff in May. 1923. The «uit was, therefore, dismissed as against defendant' 1 also. In appeal against the decree it was argued that the defendant by negotiating the lease guaranteed she payment of rent untH the lease should terminate, but it would appear that the guarantee in that case was a con-tinning guarantee within the meaning of lection 129, Contract Act. On these facts and argument it was held by tht Division Bench of the Court of Judicial Commissioner Sind as follows : "It cannot be said that in this case the transaction which consisted of the payments of rent for a series of months was one transaction. The guarantee which related to a number of payments of rent extended to a series of transactions and was therefere a continuing guarantee. As the guarantee \vas a continuing one, it was open to defendant to revoke his guarantee by a notice to plaintiff and this he did by his letter of 16th May. 1923. As by the letter defendant has divested himself of his liability, he is not responsible for the payment of rent claimed in this suit which accrued after he has revoked the contract of guarantee." lt will be seen that in this case on facts it was held that the guarantee was a continuing guarantee and therefore, the case is distinguishable on facts. : 30. Accordingly I hold that the security furnished by the applicant! was not in the nature of continuing guarantee and therefore, it could notp be revoked. 31. Taking hp the second ground I may state that it has also no substance for the security of the house offered by the applicant was accepted by the sme order by which instalments were granted and it was thereafter that the »pp/fctnt had executed the surety bond. Therefore! «v:n on the principle contained in Section 133 of the Contract Act thejapplicant/surefy cannot be said to have been-discharged for no variation in) the order subsequent to tfie furnishing of the security or execution ofl surety bond was matte much less to the disadvantage of the applicant. 32. As regard the third ground that respondents 1 to 7 did not accept the order dated 31-5-1980 it may be pointed out that the ground •rises out of the application made by the advocate for the decree-holder seeking clarification whether the order of payment of instalment of Rs. 500 per month related only to arrears or it was the total amount which was to be paid every month. Obviously, it cannot be said that by making SAicb an application the decree-holder did not accept the order whereby the jungment-debtor was alloyed to pay the decretal amount in instalment and the applicant's security of the house was accepted. Moreover, the order was not changed or van'ed in any manner. This ground, herefore, also has no substance 33. Taking up the last ground it may be stated that no doubt the security was furnished for the entire decretal amount of Rs. 37,600 payable in instalments and at the relevant lime default in payment of only one instalment was made but it would not make any difference whether the house ifsold in default of. payment of one instalment only or ihe entire decretal amount for the result would be the same unless the instalment in arrears was pakj. This ground therefore, also fails. 34. In the result the application is dismissed, both on the grounds of its non-maintainability and merits. The applicant shall bear the coiU el the respondents. (IDK) Application dismissal.

P L J 1983 Karachi 62 P L J 1983 Karachi 62 Present : saleem akhtar, J Rana USMAN ALI and Another—Plaintiffs Versus NATIONAL BANK OF PAKISTAN and Another—Defendants Suit No, 284 of 1979, decided on 22-4-1982. (i) Cltil Procedure Code (V «f 1908)—

OI, R. 9—Misjoinder of parties and causes of action—Effect of— Plaintiffs, employees of defendant Bank, challenging in civil suits order of cancellation of promotion previously granted to them—Defendant contending plaintiffs having been separately employed and having independent dealings with Bank and even separate letters of cancellation of promotion having been issued, suits filed to be bad for misjoinder of parties and of causes of action— Held : Resolution by which general cancellation order passed being admittedly operative against aw plaintiffs, separate trial not to be proper particularly when joinder of plaintiffs not to cause any embarrassment and also not to delay trial of suits. [Pp. 64 & 65] A A I R 1956 Assam 7 ; A I R 1942 All. 387 ; A I R 1932 All. 401 A A I R 1928 Cal. 92 ref. A I R 1953 Bom. 112 & A 1 R 1926 Mad. 57 distinguished. (ii) Specific Relief Act (I of 1877)- ——-S. 42—Declaration—Grant of—Service matter—Legal character— Involvement of— Held.: Position, office, rank grade of pay and benefits arising from such office being treated foundation of employee's right, in case of any change in condition of service or rank and grade to detri­ment of employee, legal character to be effected (entitling such employee to relief under SectionJh-PIaintiffs seeking relief in civil court against cancellation of promotion affecting their right to hold and have senior offi:e, higher salaray and benefits— Held •: Plaintiffs legal character being involved in case, suit for declaration to be competent. [P. 58 ) E& F P L D 1961 Dae. 616 & P L D 1957 Lab. 781 ref. (ii) Natural Justice— — —Audi alteram pirtevi — Principle of—Applicability — Show-cause nouce — Requirement of— field : Where any proceeding affects any person, property or ottier rights, authority passing order to observe principle of natural justice unless applicability of same be specifically et:lui:J by law—4jld further : Any order passed in violation of such principle not to be sustainable—Plaintiffs' promotion orders subsequently cancelled by defendant Bank without assigning any reason and without giving any opportunity of being heard—Plaintiffs admittedly after pro­ motions continuing new assignments and even drawing usual increment! for sometime— Held: feights and benefits conferred upon plaintiffs by _ promotion aol to be disturbed or cancelled without hearing them—Held further : Adverse order having t?een passed without any show cause notice, same not to be sustained—-IPp. 66 68] B, C & D P L D 1959 S C (Pak.) 45 ; p L D |%2 is C 394 ; P L D 1964 S C 410 ; P L D 1964 S C 451 ; P L J 1974 Lafe, 287 & P L J 1981 Kar. 697 ref. P L D 1967 Kar. 22 distinguished. Mr. Syed Nastruddin, Advocate for Plaintiff, Mr. Khalid Anwar, Advocate for Defendant. Dates of hearing : 4/16-3-1982 judgment By this judgment 1 propose to dispose off Suit Nos, 284/79, 285/79 add 286/79. In all the three suits plaintiffs are the employees of the National Biok of Pakistan who have challenged the order dated 19-3-1979 whereby the promotions granted to the plaintiffs were cancelled. It is an admitted position that in Suit No. 284/79 the plaintiff were promoted by order dated 5-10-1976 to Senior Grade III with effect from 1-7-1978 and were designated as Asstt. Vice President. La Suit No. 285/79 the plaintiffi were promoted as Officers Grade I with effect from 1-7-1978. In Suit No. 286/79 the plaintiffs were promoted as Offi.-ersin Grad II with effect from 1-7-1978. After the promotions, the plaintiffs in al! the three suits, were granted annual increment and other benefits including house allowance. The plaintiffs have averred that their promotions were cancelled on 19-3-1979 without assigning any reason and without giving any opportunity of being heard. The repre­ sentations made to the defendants have remained unnoticed hence the plaintiffs have filed these suits. 2. The defendants have filed written statement and pleaded that the suits are bad of misjoinder of plaintiffs and causes of action, and that no relief can be granted under the provisions of Sections 21, 42, 54 and 56 of Specific Relief Act. The main defence is that the promotions made to the plaintiffs were un-justified and eventually were cancelled strictly on the merits after the Executive Board of the Defendants No. 1 had considered the performance of the plaintiffs and all other relevant circumstances including their senioriiy and had fully satisfied themselves that the pro­ motions were not justified. On cancellation of promotions the plaintiffs' entitlement in relation to salary was relegated to that which it was prior to the promotion. It has been further pleaded that the principle of natural justice was not attracted to the facts of the case since a hearing is normally only given before imposing the punishment. As the cancellation did not take place by reason of any misconduct on the part of the plaintiffs after their promotions but by reason of the fact that the initial act of promotion was unjustified there was no question of the plaintiffs being given a.hearing On the basis of these pleadings the following issues were framed : — (1) Whether the suit is bad by reason of misjoindcr of plaintiffs or causes of action ? (2) Wbeiher order of cancellation of promotion of the plaintiffs dated 19-3-1979 is in violation of the principles of natural justice? If so, what is the effect ? (3) Whether the plaintiff is entitled to any of the reliefs claimed by him ? (4) What should the decree be ? 3. After the plaintiffs' learened counsel had completed the argument on 4-3-1982 the learned coun^l for the defendants partly argued and requested the matter to be fixed on 16-3-1982. Ori that date when tho matter was called no one was present on behalf of the defendants there­ fore, I reserved the judgments but allowed the parties to file their written arguments which have been filed by them. 4. Issae No. 1.—The main contention of the learned counsel for the defendants is that as the plaintiffs were separately employed and had inde­ pendent dealings with the defendant No. 1 and as separate letters of cancellation of promotions were issued, the plaintiffs have distinct and different causes of action independent from each other and therefore they cannot file suit jointly with other plaintiffs. It may be mentioned here that in Suit No. 284/79 there are two plaintiffs, in Suit No. 285/79 there are nine plaintiffs and in Suit No. 286/79 there are seventeen plaintiffs. The plaintiffs in all these suits were promoted on different dates but it is an admitted position that the Executive Board of defendants No. 1 in its meeting held on 18-3-1979 cancelled the promotions of all these plaintiffs. It was by one resolution that these promotions were cancelled which was communicated to the plaintiffs by the letters of defendant No. 2 dated 17-3-1979. The order of cancellation is materially the same. Mr. Khalid Anwar, the learned counsel for the defendants has relied on A.I.R. 7926 Madras 57 and A.l.R. 1953 Bombay 112 to support his conten­ tion that separate suits should have been filed by each plaintiff. In A.I.R. 1926 Madras 57 the facts of the case were completely different. The court had upheld the objection mainly on the ground that the charge of mi»- coqduct against the plaintiffs were not identical and each plaintiff's case ought to have been dealt with on its own merits. Here in the present case the facts are completely contrary. The defendants have cancelled the promotion by a uniform steryo type order without any diitinction. In A.I.R. 1953 Bombay 112 the shareholders of a company had filed a common suit fpr setting aside the contract of allotment of shares and for refund of money paid. In that case also the case of each share-holder was to be considered on its own merits. Both the esses quoted above by the learned counsel for the defendants (Jo not apply to th; facts of the present case. In the present case, there is no dispute that the promotions of all the plaintiffs in all the three suits were cancelled by one resolution of the Executive Board of thci defendant No. 1 dated 11-3-1979. It is this resolution which is in fact the operative order against all the plaintiffs which was con>un ; cated by the defendant No. 2 who has neither passed any order nor could have passed such an order. In thfs regard reference can be made to Order 1 Rale I C.P.C. which is an enabling rule. It permits the joinder of several psrsons as co-plaint.ffs subject to the condition that the right to relief to them arises out of the same act or transaction or scries of acts or transactions whether jointly, severally or alternatively ; and if such persons brought separate suits, common question of law and fact would arise. la this regard the learned counsel for the plaintiffs has relied no A.l.R. 1956 Assam 7, A.l.R. 1932 All. 401, A.l.R. 1942 All. 387 end A.I.R 1928 Col. 92. If the conditions laid down in Order I, Rule I CPC, for trial of suit with several plaintiffs is not satisfied the court has ample power under Order I Rule 2 C.P.C. to order separate trials. In the present case as is obvious common question of law and facts is involved. Considering the facts and circumstances of the case it would not be proper to order •eparate trial of the suit of each of the plaintiffs as joinder of the plaintiffs will neither cause embarassment nor it will delay the trial of the suits. In view of this discussion my finding on issue No. 1 is in the negative 5. 5. Issue No. 2.r-The admitted position is that beSr- cancelling the promotion of the plaintiffs do show cause notice was issued to tv-_m ««- any opportunity of being heard was provided to them. The defendants have endeavoured to justify this action on the ground that in the facts and circumstances of the case no notice was necessary for the simple reason that the plaintiffs had not committed any fault and were not required to give any explanation. It has further been contended that the plaintiffs were not demoted but their promotions were cancelled and therefore no hearing was given to the plaintiffs since under th« rules as well as under the principles of natural justice a show cause notice is issued only when a person it called upon to explain some act on his pert whicn is alleged to be wrong­ ful. It has been contended on behalf of the defendants that the promotions were being cancelled not due to wrongful act committed by the plaintiffs but due to the fact that the promotions themselves were invalid. To support the contentions the learned counsel has referred to the National Bank of Pakistan (Staff) Service Rules, 1973. Rule 21 provides the circumstances in which the promotions are to be granted. Rule 36 provides for punishitunt and proper procedure has been prescribed. Rule 39 provides thai btfore a penalty is imposed on the employees a written explanation of the charges against him and show cause notice as to why disciplinary action hould not be taken against him is to be issued. Therefore wbereever a disciplinary action is taken notice is necessary. The learned counsel has contended that because in cases and circumstances which governed the plaintiffs' case no notice has been provided by the rules. The learned counsel for the defendant has not been able to show or point out any rule which may govern such a situation. In the absence of any provision in the rules the defendants contend that no notice is necessary. This contention has to be examined in the back ground of the circumstances of the case. The defendants have examined Ghulam Qadir who has stated that in Suit No. 284/79 promotion was made for Officer Grade I to Asstt. Vice President! Grade that is the Senior Grade III. In Suit No. 285/79 promotions were made from Officer Grade II to the Grade 1 and in Suit No. 286/79 the promotions were made from Officer Grade III to Grade II. He has also pointed out that the plaintiffs were not sufficiently qualified, experienced or had a clear record to entitle them to be promoted. He has slated that after promotions were matft a large number of complaints were received by the Bank from various departments about the promotions given to the plainiiffs. Tbe Bank in order to keep up the efficiency and for administrative reasons decided to reappraise the whole promotion in the light of appli­ cable criteria. The Executive Board of the Bank, therefore, after due scrutiny of Service records and on consideration of the circumstances decided to cancel the promotions of those who were unjustifiably promoted. He Further slated ihat in all, promotions of 57 officers of all the levels were and the plaintiffs were not demoted but their promotions were vaiidly cancelled. The witness has described the procedure for granting promotions and has staged that the then President of the Bank had approved all the promotions as laid down by the Executive Board. Rule 21 relating to promotion also provides that in special cases and for special reason the rules laid down in sup-rules (2) and(3) for promotion may be relaxed. The (admitted position Ig that the plaintiffs after being promoted continued in {their new assignment and have even drawn the usual increment, allowances and benefits. It therefore seems cleat that the decision taken by the defendants was in general terms in respect of the promotions that were gran­ ted by the then President of the Bank which were scrutinised by taking into 'consideration the service records, seniority and effeciency of all the plaintiffs and adverse order was passed against them without affording them any "hearing. The adverse order was not passed for the simple reason that the then President had no authority to pass such order but on the assessment of he service records, efficiency, past conduct and taking into consideration he rival claims of other employees who had been superseded. This process was not mechanica.1 or clerical. It required application of mind to the £facts of the case and therefore in such process the affected party should [have been given an opportunity to explain their case. Without commenting iupon the merits of the impugned order it cannot be denied that by; promo- It ion certain fights and beneSts were conferred upon the plaintiff? which ontinued for sufficiently long time. In the face of these facts vested rights had accrued to the plaintiffs which could not be disturbed or cancelled without hearing them. The defendants allege not to have levelled any charge against the plaintiffs for cancellation of their promotion and justify their action by stating that it was a mistake or the part of the previous management who had not taken into consideration the criteria laid down for promotions and it was granted without properly evaluating the service records of the plaintiffs and other employees. Whenever any adverse order "s passed on the basis of comparative evaluation and assessment or rival claims, unless otherwise provided under the law and notice to the affected person is dispensed wjth, such person should be afforded a proper opportu­ nity to present his case. The process adopted by the defendants entitled the plaintiffs to explain, that inspite of the existing service records, they were entitled to such promotions. This aspect of the case has completely been ignored by the defendants. Merely by taking the blame upon themselves the defendants No. 1 cannot be absolved of the responsibility to hear the plaintiffs or violate the principles of natural justice. It will be a mockery to suggest that if a person.commits any fraud or misconduct be is entitled to a show cause notice to explain bis conduct but if a person is not guilty of any such misconduct because of the default of the employer an adverse order can be passed against such employee without any notice to him. Recognition of such a principle will give a handle 10 the employers to lake the blame upom themselves and pass arbitrary and adverse order against the employees. The principle of natural justice though not provided in rules for certain cases does not mean that the defendants were absolved from observing it. Where any proceeding affects any person, property or jother rights then unless the applicability of the principle of natural justice jis specifically excluded by Jaw, .the authority passing the order has to observe this principle. Any order passed in violation of the principles o! naiural justice is not sustainable. Reference can be made to the cases of DinaSobrabKatrak[PLD 1959 SC (Pak.) 45]. Mjs. FaridSons Ltd.. (PLD 162 SC 394), Commissioner of Income Taxv. Fazalur Rehman (PLD SC 41Q) 4 PfM of West Pakistan. Nur Ahmed (PLD 1964 SC 451) and Ibrahim Ismail v. S.ff.,4. Garrf/zf (PU 1981 Kar. 697). 6. The learned counsel for the defendants has heavily relied upon the case of Mohammad Ismail Zafar v. Director General, Pakistan Telegraph and Telephone Department (PLD 1967 Kar. 22). Emphasis has b^en laid on the following observation :— "Now we are impressed by Broht's further contention that the order of 21-9-1962 is illegal inasmuch as it violates the principles of natural justice having been passed without notice to the petitioners, Irj our view no notice was necessary to the petitioners for the simple reason that the petitioners had done no wrong and had committed no fault that would require explanation." 7. To understand the clear and correct implication of this observation he remaining part of this passage is quoted below :—"Besides, it seems to us that the order dated 21-9-1962, deconfirming the petitioners was not in order to their detriment. On the contrary, the petitioner's own prayer in this petition is that their seniority had not been properly determined by the earlier orders Annexures C, D and E and should, therefore, be redeterimned in accordance with the law applicable to them. Therefore, the petitioner can have no grievance with the order of 2l'9-1962, because this order has cancelled the previous notification annexures C, D and E against which they are seeking relief through this writ petition. They have also not asked for cancellation of the order of 21-9-1962 so that notice to them wat not necessary." 8. It is thus obvious that the observation relied upon by the learned counsel for the defendants were made with particular reference to the facts of the case. On facts this case is clearly distinguishable from the present one. Mr. S. Nasiruddin, the learned counsel for the plaintiffs has relied on the case reported in PLJ 1974 Lah. 281 and an unreported judgment of the Lahore High Court in case of Afohd. Abdullah Khan v. National Bank of Pakistan in which the order passed for cancellation of the promotion was held to be illegal for want of notice. The learned counsel for the defendants has contended that in an identical Petition No. 1694/79 the same court has dismissed the petition for lack of jurisdiction .and therefore Abdullah Khan's case is not binding. It has been further contended that Abdullah Khan's case is under appeal before the Supreme Court. The only distinction drawn by the learned counsel for the defendants is that in Abdullah Khan's case impugned order was challenged in writ petition whereas the present proceeding is in a suit. The principle laid down in Abdullah Khan's case are of universal applicability and the mere fact that the present proceedings are in suit which are wider than the writ proceedings it cannot be contended that the principle followed in that case cannot be applied here. 9. The learned counsel for the defendants has further submitted that as the plaintiffs have not led any evidence and the defendants have produced evidence slating the illegalities and irregularities in the promotions given to the plaintiffs, all these facts should be taken to be correct and as the pff^oiion was cancelled and the plaintiffs were not demoted no notice WX$ Accessary. In the present proceedings the issue under consideration is w heUir the promotion was cancelled in violation of the principle of ralural justice. Whatever may have been ike considerations before the defendants the fact remains that the plaintiffs have been deprived of higher grade and have been relegated to a junior position without being heard. This by itself is sufficient to entitle them to challenge tfie impugned order. I do not wish to comment upon the efficiency, seniority or the irregulariiy of the promotions granted to the plaintiff's and without entering upon that aspect of the case sufficient lo say that adverse order was passed against the plaintiffs without any show cause notice and thereforeit canno: be sustained. My rinding on the issue is that the order cancelling the promotions dated 9-3-1979 was passed in violation of the principles of natural justice and is of no legal consequence 10. Issue No, 3. —The learned counsel for the defendants has con­ tended that the plaintiffs are not entitled to the relief claimed in the suit. Mr. Khalid Amwar. the learned counsel for the defendants has relied on the cases (!) Mnllk & Haq v. MohammadShamsul Islam Chaudhry (PLD 1961 SC53I), (2) R.T.H. Janjua v. National Shipping Corporation (PLJ 1974 SC 93), (3) Gulf Steamship Company v. Dilawar Baloch (PLD 1962 Kar. 899>, (4) Mohammad Ailam v. National Shipping Corporation (PLD 1979 Kar. 246), (5) Abdul Hamid v. Secretary Rehabilitation A Revenue to the Government of Punjab (PLD 1980 Lah. 1) and (6) Pakistan v, Mohammad Ajbdul Quddus (PLD 1961 Dacca 616). All these cases relate to wrongful termination of service. The well settled principle as laid down by the Supreme Court in Malik & ffaq's case is that where the service of an empJoyee fs wrongfully terminated, the employee has only the right to claim damages for wrongful termination and cannot seek declaration (hat he con­ tinues to be in service. This is a well settled principle governing relationship of master and servant. In the present cases the question of wrongful termination of service doc not arise. The only grievance is that their promotions have been wrongfully cancelled ex pane. In these circumstances priniple laid down in the aforestated cases cannot be applied to the present case. 11. Under Section 42 of the Specific Relief Act a declaration can be granted to any person entitled to any legal character or to any right to any property or legal status. The position, office, rank, grade of pay and the benefits arising from such office are treated foundation of an employee's right. If there is any change in the conditions of service or rank and.grade and such variation is to the detriment of such employee then bis legal character is affected. In such circumstances a declaration can be sought. Reference can be made to the case of Pakistan v. Mohammad Abdul Quddus (PLD 1961 Dacca 616). In the case of District Board Lahore v. Agha Mohammad Khan reported in PLD 1957 Lah. 781, it was held that "the office which a psrson holds, his rank_as well as the grade of pay to which he is entitled, arc all parts of his legal character for' they are personal attributes of a person which are the foundation of his rights." It is Jtherefore, clear that as the present suits relate to the cancellation of promo- Jtion which has affected plaintiffs right to hold and have a senior position, (higher salary and benefits the plaintiffs' legal character is involved and • therefore they are entitled to a declaration. In the result the plaintiffs are entitled to declaration that (he impugned orders of cancellation of promo­ tion are illegal and without legal effect as having been passed in violation of the principles of natural justice without giving any show cause notice jo the plaintiffs. 12. Issae Me. 4.— In view of this aforestated discussisn tb,e suit is decreed KgainM the defendants in terms of aforestated declaration with costs. (SHR) Suit decreed.

PLJ 1983 Karachi 69 , PLJ 1983 Karachi 69 , V i.ti : Arout hayeb kureshi, C.J GOVERNMENT OF SINP through Secretary Industries. Karachi—Appellant Versus SIND FINE TEXTILE MILLS, Sbikarpur— Respondent Misc. Appeal No. 96 of 1979, decided on 27-9-1982. <i) Defence of Pakistan Ordinance (XXIII of 1971)—

Ss. 18 & 19—Requisitioning -of property by Qovemapent—Compensa­ tion for—Determination of— Arbitrator—Award by—Challenge to— High Court—Interference in appeal-—Scop of—HeM: Jurisdiction of High Court white hewing appeals against "award" of Arbitrator u/S. 18 (1) (/) of Ordinance to extend to examining ail questions of law and fact and Court to be competent to substitute its own findings and decisions on all luch matters—Held further : Decision of arbitrator though styled as "award" High Court while hearing appeal against same, not to be bonad by limitations as prescribed in Arbitration Act (X of i940). [Pp. 76 & 77] A (U) Dcfeace of Pakistan Ordinance (XXHI of 1971)- ——Ss. 18 & 4—Industrial undenaking—Requisitioning of—Compensa­ tion—Determination of— Held '. Compensation to be payable not merely in cases of acquisition of immovable property but also in cases where industrial undertaking be taken into possession—District Magistrate in case requisitioning Mills in exercise of powers u/S. 4 of Ordinance but subsequently Government de-requisitioning same—Respondent claiming compensation inter alia for deduction in correct and long term liabilities and for normal depreciation—Appellant appointing arbitrator and never challenging his jurisdiction— Held: Proceedings before arbitrator to be valid and within framework of law. (P. 85.] B Ml) Defence of Pakis._n Ordinance (XXIII of 1971)-

Ss. 18, 19 & 4—Requisitioning and subsequent de-requisitioning of industrial undertaking—Compensation for—Assessment of—Held : Correct criterion for assessing compensation to be determination of actual loss or damage to property in question plus approximate amount of income— Industrial undertaking in case requisitioned by District Magistrate but sub-equjntly Government de-requisitioning same— Held: Taken over property having been returned, enquiry regarding compensation to center round fact o!" how tnu;h loss owner suffered on account of his deprivation of property and same to be determined by way of finding difference between value of properly at time of taking over and at lime of return to owncis uuu >o :^ch amount to be added profiis acquired by Government or, incase of d^puie, .,w nuu^a as loss of prolii to owner as to appear reasonable [Pp. 81 & 82] C Mr. A. Sattar G. Shaikh, A. A. G. for Appellant Mr. Khaltd Anwar , Advocate for Respondent. Date «f hearing 18-8-1982. judgment This ia an appeal by the Government of Sind under Section 18(/) of the Defence of Pakistan Ordinance, 1971, to challenge an award made by Mr. Justice (retired) Kadir Nawaz Awan, who was appointed as an arbitrator under Section 18 (ft) of the said Ordinance in respect of comensation in connection with the requisition of Sind Fine Textiie Mills, hikarpur. The brief facts of the case are that, in October 1973, Sind Fine Textile Mills, located at Shikarpur, was requisitioned under the orders of the District Magistrate, Sukkur, under the provisions of Section 19 of the Defence of Pakistan Ordinance. It may straightaway be pointed out that, although Section 19 of (he Defence of Pakistan Ordinance confers the power of acquisition and requisition of property on the Central Govern­ ment, Section 4 of the same Ordinance provides for a power of the Central Government to direct that any power, or, duty under the Rules may be eiercised.^or, discharged by any provincial Government, or. by an OflBecr, or, authority subordinate to such Government. It appears that the Mill was requisitioned by the District Magistrate in exercise of such powers, which the Central Government has delegated. It is case of the appellant that the Mill was requisitioned, because public safety and prevailing labour unrest required the taking of such action. After the requisition, the Mill was actually pat in the care ofoneKhair Muhammad Khatian as Con troller for the purpose of running the Mill. The Mill was de-requisitioned in April H74, and a notification to that effect was issued by the Cabinet Division of the Government of Pakistan on 13-4-1974. It seems that the owners of the Mill believed that damage had been caused, so thai they did not take possession of the Mill, and wanted to have an inventory made in regard to the machinery etc, and the condition of the same, as also the stocks. The owners asked the Provincial Government as well as the Federal Government for a joint survey of the Mill. However, the case, a§ has been set up before me. t by counsel appearing for the appellant, is, that the Government had not appointed any Surveyor. I will advert to this aspect of the matter in a letter part of the judgment. However, a joint survey was made by Mr. P.K. Sha.ha.ni and Mr. Mooraj. A Survey Report was prepared by the two Surveyors on 24-5-1974, According to the joint Survey Report, the owners of the Mill were entitled to a compensation of Rs. 83.25 lakhs on account of the difference in the position of the Mill at the time of taking over and return. Besides this amount, the Sutveyors also came to the opinion that the owners of the Mill were entitled to a further sum of Rs. 14.82 lakhs on account of damage to fixed assets and depreciation by reason of rough handling. Such Survey Report was signed by both the Surveyors. It seems the owners of the Mill were not able to obtain any com­ pensation during the People's Party Government. However, on the 9th of August 1977. a leiter w-.s written by Mr. Iftikhar Soomro. that Manag­ing Direc.or of the Mill, stating that, on account of political differences bciween Haji Moula Bux Soomro, the Chairman of the Mill, and the People's Party, the Mill had been requisitioned. Such letter has been placed on the record by the learned Additional Advocate General, who referred to it. Mr. Khalid Anwar also referred to this Setter for showing, besides other facts, the fact that the action of requisition of the Mil! w&t a mala fide act, actuated by malice on account of political difference between Haji Maula Bux Soomro, Mr. Rahim Bux soooko and Mr. lllahi Bux Soomro on the one hand, and the People's Party on the other. La thif letter, the Managing Director of the Mili sought the following reliefs :— "Firstly, the Banks should be directed to write off the interest . charged from 1972 uptodate. A precedent for this exists in the cas« of M/s. Synthetic Chemical Industries Limited where the interest charges for the last five years on borrowings Of about Rs. 3 crores were written off by M/S. United Bank Ltd. and Muslim Commercial Bank Limited. Secondly, the Banks should be directed not to press for repayment and to sanction additional amounts at concessional rates of interest to allow the Mill to function. Thirdly, Government Agencies such as WAPDA, Sind Social Security Institution, Education Cess etc. should be directed not to press us for payments for the next two years. Fourthly, compensation should be paid to us for the damages caused in accordance with the enclosed Survey Report." Action was taken by the Secretary, Ministry of Industries, Government of Pakistan, who submitted a note to the Secretary General-in-Chief (Presumably Mr. Ghuiaoi isbaq Khan). By this note, certain directions of the Chief Martial Law Administrator were conveyed by the Secretary of Ministry of Industries. The relevant directions were in the following words :— "The CMLA directed the undersigned on 2ht evening on telephone that ;— (1) the Sind Government be told to settle without delay the damage/ compensation claim (because of requisitioning and later de­ requisitioned of she above mentioned mill. The mills claim is of the order of Rs. 83 lakhs. (2) The Banks concerned be asked to waive interest on the mills borrowings on the analogy of existing precedents". The matter came up before the Sind Government, and, on 22-12-1977, the Secretary of Industries Department submitted a note to the Martial Law Administrator, Zone 'C' (Sind) regarding payment of compensation to the management of the Mills, and such nole reads as follows : — "The Secreiary, Ministry of Industries, Government of Pakistan, has communicated to me today morning over telephone xhe following orders of the Chief Martial Law Administrator : "The Sind. Fine Textile Mil!, S^hikarpur, which is a public limited company was taken over by v^t Sind Government in October, 1973, and returned to the owners in' April, 1974. Their case regarding payment of compensation of Rs. 83.25 lakhs, which is reported o have assessed by the Survey Team appointed with the approval of the ex-Chief Minister, Sind, maybe settled by the Sind Governr"<-!t urgently under intimation to him"- .Ultimately, on 6-4-1978, a, summary was submitted by the Secretary of the Industries Department to the Chief Secretary. Sind Government. The last three paragraphs of the summary read as follows ;— "7. From the foregoing following conclusions are made : (1) The Enquiry Report of Martial Law Authorities reveals that the Mill was taken over on political grounds and otherwise one of the recommendations of the Investigation Officer is that the Manage­ ment may be granted some genuine financial compensation by Government to keep the mill functioning. (2) The record of Home Department is silent about constitution of any Survey Team which assessed the amount of compensation to the tune of Rs. 83.25 lakh to be paid to the present management, against the damages to the Mill during the period it was requisi­ tioned and operated by the Government. (3) The Mill was requisitioned under D.P.R. and was subsequently de-requisitioned by the Cabinet Division, Government of Pakistan. (4) 8. In view of the above, a decision is to be taken :— (0 Whether the claim for payment of compensation is to be considered by the Provincial Government, or (ii) the Federal Gavernment will have to decide the claim in view of the fact that the process of taking over the mill was started on the basis of the note (copy attached) by the former Prime Minister. 9. It is proposed that before the papers are submitted to the Martial Law Administrator, the opinion of the Law Department may be obtained, whether the Provincial Government or the Federal Govern­ ment may consider payment of the claim in view of the orders of the Chief Martial Law Administrator mentioned in para-1 above." Finally, on 2-5-1978, a summary was prepared for the Martial Law Administrator, Sind, by the Chief Secretary of the Province, and a decision was recorded by the Martial Law Administrator to the effect that the Federal Government may be requested to determine the compensation in accordance with the mechanism given in Section 18 (1) (b) of the Defence of Pakistan Ordinance, 1971. It was also stated that Finance Department may be requested thereafter to make payment of compensation as deter­ mined by the Federal Government on behalf of the Provincial Government. By such an order of the Martial Law Administrator, the case was referred for arbitration. Mr. Justice (retired) Kadir Nawaz Awan was appointed as the sole arbitrator. A claim for compensation was submitted by the Mills. In the said claim, the following particulars were mentioned :— (1) A sum of Rs. 14.82,000.00 on account of losses due to the damages to fixed assets and abnormal depreciation due to rough handling of the machinery. (2) A sum of Rs. 83.25 lakhs on account of reduction in current assets, increase in current liabilities, increase in long term liabilities and normal depreciation. In paragraph 9 of the claim, the facts, which have caused such losses, were enumerated as follows :— "(a) Losses/damages caused to the equipment. (b) Delays in replacing damaged machinery due to reasons beyond the coiitrc! o f fbf claimants. (c) Deterioration in equipment leading to loss of production and loss of quality. (d) Losses due to loss of reputation arising out of poor quality yan\ exported/sold in the local market during the period of requisition­ ing. («) Losses due to un-suitable/inefficient and excessive labour engaged by the Government appointed management of the Mill. {/) Other losses". A sum of Rs. 24 lakhs was claimed for' loss of profits and a burn of Rs. 10 lakhs was as claimed as damages due to loss of reputation in the local market. Other losses were also assessed at Rs. 10 lakhs. A total claim of Rs. 160.07 lakhs was submitted, and interest was claimed at the rate of 14 per cent. A reply was submitted by the appellant. The fact of requisitioning and de-requisitioning was admitted. It was denied ihat auy joini survcj was agreed to, or, conducted after the requisitioning. It was denied that an\ fixed assets were damaged on account of rough handling during the lime ihc Mill was run by the Government. The Report of the Surveyors was stat.ed to be not binding. The claim to loss of profits was refuted. Additional plea was taken that the damages, if any, were a consequence of labour 4inrest that prevailed before the Government took over the Mill, and that the Mill was returned to the owners in the same condition in »vhich it was laken over. It was also averred that the reference to arbitrator was limited lo the physical damages to the Mill, if any, and other items of claim, or, damage were beyond the scope of arbitration proceedings. On the pleadings before arbitrator, evidence was led by both the parties X)fl behalf of the Government, the following witnesses were examined ; — (1) Mr. Prem Shahani, Surveyor. (2) Mr. Muhammad Amir Khan, Assistant Director, Labour. (3) Mr. Khair Muhammad Khatian. Government appointed Controller of (he Mill. (4) Mr. Abdul Wahab. Deputy Commissioner, who requisitioned the Mill. (5) Mr. Abdul Jabbar Khan, Technical Officer, Pakistan Central Cotton Committee, Government of Pakistan. On behalf of the respondents, the following witnesses were examined . (1) Mr. Amir Abbast Managing Director. Sind Fine Textile Mills.. (.2) Mr. Afsar Mooraj Joint Surveyor with Mr. P.K. Shahani. (3) Mr. Jbrahim LahorewjILi. a Quartered Accountant, ann-ing accounts of the respondent/Mill. (4) Mr. Khalil-ur-Rchmati, Textile Convjjtjmt Mr. Nayyar Masud. Textile hngmccr. Mr. li'ahi bjx Soonuo. Director ot the respondent/Mill. Mr. Justice (retired) Kadir Nawaz Awan by his decision, dated 18-4-1979, awarded a total sum of Rs, I,40,07,OCO.CO to the respondents. He ordered that payment be made on, or, before 31-5 : !979, and, in default, the appellant would also pa. interest at the rate of ten per cent (per annum). Aggrieved by the award" of the arbitrator, the present appeal has been filed, I have heard Mr. A. Sattar G. Shaikh, Additional Advocate General, iri support of the appeal, and Mr. Khalid Anwar in support of the award. Before proceeding to determine the questions involved in this case, I t hink it necessary to state the law relating to proceedings of this nature. The Defence of Pakistan Ordinance was promulgated on 29ih . November 1971 in the wake of Indo-Pakisian War. As it is, the Ordinance envisages very wide powers to the Government, and such powers even cxtand to. requisitioning, or, acquisition of immovable Property, industrial, or commercial undertaking or, any interest in such undertaking. Sub- Section (2) of Section 3 confers and provides for power to requisition any property, movable, or, immovable, and such power includes taking posses­sion thereof, and issue of any orders in respect thereof. Reference may (be made to clause (xxxii), appearing in subsection (2) of Section 3. In any case, no contention has been raised before me to the effect that the power to requisition the property in this case does not exist. However, to put • the record straight, reference may also be made to subsections (4) and (5) •of Section 3 of the Defence of Pakistan Ordinance, which provide for the Central Government making an order, or, rule to requisitioning of properly. The.relevant rule, in this context, is Rule 121, Sub-Rule (1) whereof reads as follows : — "12!. Requisitioning of Property. — (1) If in the opinion 01 the Central Government it is necessary or expendiem so to do for ensuring the security, the public safety or interest, or the Defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for maintain­ ing supplies and services essential to the life of the community, it may by order in writing requisition any property, moveable or immoveable, and may mike such further orders as appear toil to be necessary or expedient in conneclion with the requisitioning : Provided that no property used for the purpose of religious worship and no such property a> is referred to in rule 11 1 or in rule 11 7 shall be requisitioned under this rule". Although the above rule envisages that the power to requisition pro­ perty vesis in the Central Government, yet subsection (4) of Seciion 3 provides that the power could be exercised even by the Provincial Govern­ ment, or, by any officer, or, authority subordinate lo such Government, Subsection (5) of Section 3 envisages full powers to the Provincial Govern­ ment in such behalf. For the sake of convenience, subsections (4) und U) of Section 3 of the Defence of Pakistan Ordinance are re-produced beiow :— "(4) The Central Government may by order direc; that any power or daiy which by rules under subsection (1) is conferred or imposed upon the Cen'.rui Government shall in such circumstances and under ruci; c-j'idi nous, ii any, as may be specified in the direction be exercised (a) by any officer or authority subordinate to the Central Govern­ ment, or (b) by any Provincial Government or by any officer or authority subor­ dinate to such Government, or (c) by any other authority. (5) A Provincial Government may by order direct that any power or duty which by rules made under subsection (1) is conferred or imposed upon it or which has been directed under subsection (4) to be exercised or discharged by it, shall, in sueh circumstances, and under such conditions, if any, as may be specified in the direction, be exercised or discharged any officer or authority, not being an officer or authority subordinate to the Central Government". The District Magistrate, Sukkur, passed an order on 23-10-1973, after he received a report from the Assistant Director (Labour) and the Assistant Commissioner and Sub-Divisional Magisirate, Shikarpur, stating that" the Mill in question had been closed, so that (he production of yarn was suffering; and the workmen were not getting their wages. On such grounH, an opinion was recorded that it was necessary and expedient for ensuring public safety and interest of Pakistan and also for maintaining the supplies of yarn, wh-ch is essential to the life of the community, that the Mill in. question should be requisitioned. Mr. Khatian was appointed Controller, and he was given the following powers :— (1) The powers and functions of the Board of Directors under the Companies Act. (?.) All powers and functions exercised by the owner/owners of the Mill. (3) The Controller was asked to take over the Mill with all the movable and immovable property, including, open ground, machi­ nery, furniture, fittings, vehicles, raw-material, finished goods, dodowns, offices, stores, stocks and shares and cash in banks, and, in short, all other assets. The accounts of the Mill in the banks were frozen. It was also ordered that wages and arrears of wages to the labourers shall be paid even by taking overdrafts from banks on behalf of the said Mill. It would indicate that the taking over was complete and total. In fact, there is no dispute on that point. The other provisions that are relevant in this context are embodied in section 18 of the Ordinance. This section deals with the payment of compensation to the person whose industrial undertaking, or, interest in such undertaking is taken possession of. Subsection (1) of Section 18 reads as follows :— "18. Compensation to be paid in accordance with certain principles for compulsory acquisition of immovable property, etc.—(I) Where under Section 19 or by or under any rule made under this Ordinance any immovable property, or a commercial or industrial undertaking or any interest in such undertaking is compulsorily acquired or taken » possession of for a public purpose, there shall be paid compensation, the amount of which shall be determined in the menner, and in accordance wiih the principles, hereinafter set out, that is to say— (a) where an amount of compensation can be fixed byagreemcnt.it shall be paid in accordance wilh such agreement ; (b) where no such agree'ient can be reached, the Centra! Government shall appoint as arbitrator a person who has been or is qualified for appointment as a Judge of a High Court ; (r) thi Central Government may, in any particular case, nominate a person having expert knowledge as so the nature of ihe property acquired, to assist the arbiuaior, and where such nominaiion is made, the person to be compensated may also nominate an assessor for the said purpose : (d) at the commencement of the proceedings before the arbitrator, the Central Government and ihe person to be compensated shall state whai in their respective opinions is a fair amount of com­ pensation ; (e) the arbitrator is making his award shall have regard to— (/) the provisions of Section 23 of she Land Acquisition Act, 1894 < I of Io94), so far as the same can be made applicable ; and (fi) whether the acquisition is of a permanent or temporary character ; Provided that where any property requisitioned Under any rule made under this Ordinance is subsequently acquired under Section !9 ^ or any such ru!e, the arbitrator in any proceedings in connection ^P with such acquisition shall, for the purposes of the provisions of the said Section 23, take into consideration the market-value of the property at the date of its requisition as aforesaid and not at the date of the subsequent acquisition ; (/) an appeal shall He to the High Court against any award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government. (g) save as provided in this section and in any rules made thereunder, nothing in any law for ihe time being in force shall apply to arbitrations under this section", Again, Rule 121 (4) contemplates the payment of compensation that the Central Government may determine. It would seem that such com­ pensation could be determined by agreement, but, in case such an agreement cannot be reached, then an arbitrator has to be appointed, and only such a person could be appointed, who has been, or is qualified for appointment t? a Judge of a H'gh Court. Clause (/) Section 18(1) provides for appeal to (he High Court against the award of an Arbitrator, and, in this case, the appeal has been filed under that provision. Since the decision of an arbitrator is styled as an award, my attention has been engaged to the question of scope of interference by this Court with the award of the arbitrator. The point has engaged my attention solely for the reason, whether this Court, in dealing with appeal under Section 18 (!)(/) of the Ordinance, is bound by such limitations as are prescribed in the Arbitration Act, when an award is challenged before the Civil Court. In my view, no such limitations exist, for the decision of the irbitrator, inspite of being styled as an award, is subject io an appeal belore the H.gh Court, and, since ! am hearing an appeal, jurisdiciion is Midi ft is conferred oa ail appellate Courts which, I may clarify, would extend to examining aii the question of Jaw and fact. In fact, Mr. A. Sat tar O. Shaikh has pointed out that this Court, in dealing with the appeals of this nature, is not disabled from substituting its own findings And decisions on matters of fact as well. I am in full agreement wnti There is another aspect ©f the case, which may be dealt with before I proceed to examine the merits of the award. On 1-6-1982, Mr. A. Sattar O. Shaikh made a request for adjournment, and for calling of the record from the arbitrator, It was pointed out to him that he should have placed the record before the Court, or, in any case, made a request before the learned Judge, who admitted this appeal to regular hearing. Mr. A. Satter G. Shaikh stated that such a request was made in the memo of appeal, but no order had been passed. The position, however, was that, in the meantime, Mr. Justice (retired) Kadir Nawaz Awan had died. What is more that it is not known where the record is, and I was informed by the advocates that even the Begum Sahibs of Mr. Justice (retired) Kadir Nawaz Awan was dead, and his only son was in the United States, so that the record could not be made available. However, on 2-6-1982. Mr. A. Sattar O. Shaikh made a statement that he had been able to obtain some docu­ments, which he would like to place on record. He was permitted to place the same on record, and, on the same date, I had passed an order allowing both the parties to produce all tht documents on which they seek to rely. In fact, the entire record, which is relevant to the determination of the issues in this case, has been placed on record, and both the parties have referred to it. The step was in the jjature of reconstitution of the record. f must state that no advocate made any grievance in regard to non-avail­ability of the record. In fact, aii the depositions, pleadings, and documents are now available. Atthisstage.it will be profitable to consider the evidence that was recorded by the arbitrator. The main piece of evidence in this case is furnished by the Survey Report jointly made by Mr. P.K. Shahani and Messrs Mahboob Mooraj & Co. Mr. P.K. Shahani has stated that, in the middle of March 1974, viz after the return of the Mill, he was contacted by the Additional Secretary of Cabinet Division of the Federal Government, tnd asked if he would be prepared tojcarry out a survey in the interior ofSind. This witness was then informed and told that Messers Mabboob .Mooraj & Co. had been nominated by the Fine Textile Mills as joint surveyor with Mr. P.K. Shahani. A survey of the Mill as well as the accounts was carried out. ! must state that this witness has not been cross- examined at all. Mr. Afsar Mooraj on behalf of Messers Mahboob Mooraj & Co., ihe joint surveyor, was also examined by ihc claimant, and, in cross-examina­ tion, he was only asked iwo questions, the answers to which were as follows : "As far as I can remember over one week was taken to" complete the turvey. The joint surveyor was Mr. P.K. Shahani and as far as i remember be was appointed by the Government." A faint argument has been raised before me that Mr. P.K. Shahani had oot been appointed by the Government, it is difficult to assimilaie sue)- argument, because I have not been able to persuade myself to believe tha< this surveyor, who is a professional surveyor, would gratuitously proceed to Shikarpur in order to lurvey the Milt, which process must have consumed teveral days. In -Cact, • detailed document, running into several pages, was prepared by the surveyors, in which full condition of the assets of the Mill, including its financial condition, were taken note of. To say tile least, the authenticity and correctness of this Report has not been challenged at all. The Survey Report indicates that, after the take over, the maintenance of the mill was given to a person not qualified as a textile technician, So i that adjustment could not be made in the Blow Room, the machines were

not run properly and the Carding Engines were producing lower quality webs. On account of such reason, the quality of yarn produced was poor, which did not attract customers. It is also stated that in a standard textile mill of this size, as we have in this case, usually 900 employees are required, but instead the management employed 1400 employees. In reg^iu to the condition of machinery, it was stated that the yarn, being fluffy, got stuck to the front rollers, and, for the removal of such fluffy yarn, a special knife had to be used, but, in this case, screw drivers, or. heavy cutting knives were used, so that the rollers were badly damaged a id bad numerous cuts and dents, which need to be replaced. It is also stated in the joint Survey Report that the Mills, during the take over period, manufactured yarn to the extent of 40 lakhs pounds, but the same was of very inferior quality, ^ which attracted no buyers, because it was "absolutely unsuitable yarn, weak and fluffy". Besides the loss, even the goodwill of the Mill was ^ •spoiled. In regard to depreciation of machinery, the surveyors came to the •nanimous opinion, and the normal depreciation was Rs. 14.44 lakhs, and depreciation due to rough handling Rs. 3.62 lakhs. To these figures was added a further loss of Rs. 11.19 lakhs on account of damage caused to the fixed assets in the Mills. In fact, the surveyors have appended a schedule marked "B" in the Report, and have detailed all the parts that had been damaged on account of rough handling, or, mishandling. The surveyor also examined the statements of account. They took note of the assets and liabilities of tt|e Mill on the date of taking over and on the date of handing over. On the date of taking over, the assets were Rs. 71,18 lakhi and at the time of handing over the same were reduced to Rs. 70.31 lakhs. \ This appears to be negligible. But in regard to the liabilities, the surveyor j^ prepared a sort of table, showing five items of liabilities, namely, bank over­ draft!, creditors, accr':d.«« «penses, unclaimed dividend and taxation provision. The fig 'e in regirn to bank overdr^rt, unclaimed dividend and taxation provision did not undergo a change during the period the Mill was managed by the Gover,nmem, but the amount payable to the creditors at the time of take over was Rs. 1.30 lakhs, and the same rose to Rs. 11.72 lakhs, while the accrued expenses, which were Rs. 5.17 lakhs at the time of take over, had shot up to Rs. 51.64 lakhs at the time of handing over. These two items showed an increase of Rs. 56.81 lakhs. There was no cash for payment at the time of handing over, and the Mills are now burdened with this liability. The other major items, which the surveyors took place of, was in regard to long term loans. A table has been prepared, showing the difference in the figure of liabilities on account of such loans. It seems that,' while the Mills were run by the Government, overdue instal­ ments and interest had accrued, and this accounts for a further liabiliiy of Rs. 11.13 lakhs, which has to be cleared by the Mills. The cash in band at the time of handing over was a mere sum of Rs. 22,327.00. It seems i hat, at the time of taking over the Mill, a sum of Rs. 1.79 lakhs (approxi mately was in the banks, and at the time of handing over, this amonut had increased to Rs. 2.3J lakh (approximately). But, during that period, the amounts of the creditors lying with the Mills had increased by about Rs. 12,000.00, and amounts payable for the goods supplied has increased from Rs. 9l.000.00 (approximately) to Rs. 11.08 lakhs. This short-fall wa» aggregated in the Report, and it was found that the liabilities of the Mil> had increased by Rs. 10.34 lakhs during the period that the Mill had been taken over by the Government. During that period, the accrued expenses, which had become a liability, had also increased by Rs. 46.46 lakhs. The long term loans and overdraft instalments had also increased by about Rs. 1 lakh. The total current liabilities, according to the Survey Report, had risen from Rs. 70 lakhs to Rs. 126 lakhs, the long term loans had arisen from Rs. 190 lakhs to Rs. 201 lakhs. The statement of initial assets and liabilities would indicate that, during the period of take over, the financial position of ihe Mill had deteriorated to the extent of Rs. 83.25 lakhs. At the time of arguments before me, the learned Additional Advocate General did not state a word to challenge the correctness of the Itatement. In regard to the Survey Report, nothing was brought in evidence to show that the figure, or, compulation was wrong, or, faulty. On the other hand, an argument has been advanced before me on the basis of the fact that the year 1973 was a boom period in cotton and yarn-trade, and, in that context, Mr. Khalil-ur-Rehman, a Textile Consultant,was examined on behalf of the Mills, and he had stated that, from October 1973 to April , 1974. the period was one of boom for the textile industry, because the prices in the international market had arisen, and profits were higher. It seems this witness knew that the Mill was equipped with machinery manufactured by Toyoda of Japan and San Gorio and Marzoli of Italy, and. on such basis, this witness stated that the plant equipped with such mach­inery should produce profits ranging from Rs. 35 lakhs to Rs. SO lakhs. Having dealt with the point in regard to depreciation and increase in liabilities of the Mill. I would shortly deal with the remaining evidence. Mr. Muhammad Amir Khan, the Assistant Director of Labour in Sukkur had spoken about some labour union trouble that had taken place in July 1973, viz before take over. He has stated that there was power break down, and therefore the Labour Court had been moved by the management to permit a lay-off. The other witness was Mr. Khair Muhammad Khatian, who had been appointed as the Controller of the Mills in question. He stated that the Mill in question was a new Mill, and, during the first six years, it had accumulated losses of Rs. 20 lakhs, or, so. He also detailed the dues that were payable by the Mill to the IDBP, Customs, Income-tax Department, and on account of unpaid wages. He stated that the machinery was in bad condition, although he admitted that he had found 5043 bald of cotton lying in the godown. He also stated that 12600 spindles of the new size were working. In cross-examination, he admitted that he had no qualification in textile engineering, and. during the working, no spinning Master had been employed. He also stated that the Mill did not work until the beginning of November 1973, because the floor had been damaged, although he stated thai he could not name any of the machinery parts, which may be missing. He admitted (hat he had written on 28th November 1973, stating that 1403 persons were working in the Mill, but he said that ac uilly the number was 900. When asked whether he could state the number of worker-that would be required for a Mill of 130JO spindles, he was unable to make a definite reply, though he stated that a Mill having 25000 spindles would need 900 employees. He, however, admitted ihat, in the months of March and April, about 20000 spindles were working. To a question, he even replied that he operated the Mill at a loss for the period oT requisitioning, and the reason, which he assigned, was that the market prices were low. He admitted thai, before requisitioning of the Mill. 70 percent of the yarn used to be exported, but, during the period of requisitioning, less than 10 per cent was exported, and even this quantity was rejected by the foreign buyers. He slated that, during the labour dispute, no damage had been caused to the Mill. In regard to low produc­ tion, he explained that be ccnM ™«i give '•• tr.as fip ||r ^, Kermis he HiH not have a cost accountant, and secondly only 70 to 80 per cent spindles were operated, and thirdly, from the middle of December 1973, WAPDA had ordered the closure of the Mill from 5 00 P.M. to 10.00 P.M. However, there was no evidence on that point. To a suggestion that 5043 bales of cotton, if properly tuned, would bring a profit of Rs. 30 lakhs, the reply was that he could not say so. The other witness examined on behalf of the Government was Mr. Abdul Wahab, Deputy Commissioner, who had requisitioned the Mill. He has harJiy anything to state in regard to the working, or. losses to the Mili, but he has been cross-examined at length on 'he point that the action of requisitioning the Mill was mala fide. On behalf of the claimant, the first witness was Mr. Amir Abbasi, the Manager of the Mills. He stated that, in July 1973, a notice was received from WAPDA about the shut down of electricity supply, so that the Milli were closed. In regard to the condition of the Mill, before the take over aud after the return, be stated that at the time the Mill was returned in April 1974, "there was a difference of heaven and earth in the quality and condition of the machinery". He stated that almost 2/3rd were not workable. He stated that the labour required for working the Mill wat about 500 persons, but. at the time of de-requisitioning, the labour force was 1400. He denied-that any damage to the machinery had taken place due to labour unrest. The other witness examined by the claimant was Mr. Ibrahim Lih^rewala. a Chartered Accountant, who had checked up the accounts a.nd found that as between 1973 and April 1974, there bad been an ov^a// defcit of Rs. 83,26,000.00, Mr. Khalil-ur-Rehman, a Textile Coossultatit, was examined by the claimant, who, besides stating that the period between October 1973 and April 1974 was a boom period for textile industry, fcas also stated that, during this period, a Mill of this type should prodote profits, between Rs. 35 lakhs to Rs. 50 lakhs. He stated that the Ubotir f orc e for a Mill of this nature, if full 25000 spindles were working, would he between 800 to 1000. He went on to state that even overhauling the equipment would consume one year. Mr. Nayyar Masood stated that n inventory was prepared in his presence at the handing over, and, at that time. Mr. Jillani Malik, a Textile Engineer, and Mr. Mooraj, a surveyor, were present. Mr. Illahi Bux Soomro, one of the Directors of the Mill, had stated that the joint survey was carried out under the instruc­ tions of the Government, and Mr. P.K. Shahani Was the representative of the Government. He stated that at the time of return of the Mill, the Japanese plant was completed damaged and not operational, whereas the Italian plant was severely damaged, and it was operating, but not satisfactorily. He stated that prior to the take over, they were able to export over 90 per cent of their product. He stated that he had to restore the damaged machinery to normal use, and that consumed a lot of time. He denied that any damage was caused to the Mill during labour unrest. lie, however, admitted that, before the take over, the electric (apply had been disconnected by WAPDA The last question that deserves consideration it the quantum of com­ pensation. Under Section 18 of the Defence of Pakistan Ordinance, com­ pensation is payable if any industrial undertaking is taken possession o for a public purpose. Although the title words in Section 18 specifically ttta only to acquisition of immovable property, but the use of the wore "etc." immediately after the words "compulsory acquisition of immovable property", would seem to indicate that compensation is payable even if an industrial undertaking is taken possession of. In the instant case, the appellant had appointed an arbitrator, and has not challenged his jurisdic­tion. In these circumstaaces, it is reasonable to assume that compensation is payable not merely in cases of acquisition of immovable property, but also in cases where any industrial undertaking is taken possession of, be it by way, which may be termed acquisition, or, acquisition, or, any other manner. On the bther hand, it would be correct to state that, in fact, the Government had acquired the Mills in October 1973, and the return of the Mill will not affect the liability to pay compensation. The pro­ ceedings before the arbiirator were, therefore, valid and within the frame work of the law. Clause (c) of subsection (1) of Section 18 of the Defence of Pakistan Ordinance -lays down two principles in the assessment of compensation. The first principle is that the arbitrator shall have regard to general pro­ visions of Section 23 of the Land Acquisition Act for the purpose of making the award, and the econd principle is that he must take note of the fact, whether the acquisition is of a permanent nature, or, temporary character Section 23 of the Land Acquisition Act enumerates all such mat ten. which have to be considered by a Court in determining the amount of compensation. The first clause of the said section makes a reference to compensation being awarded in the same measure as the market value of the land at the time of taking over. Although the other clauses in subsection (I) of Section 23 may also be remotely, or, obliquely rmported for consideration in the present case, but, for the purposes of thi present case, I am of the view that the correct-criterion for assessing com /pensation should be determination of actual loss, or, damage to th< property in question to which may be added the approximate amount which the property might have yielded to owners as income. In this case the property was returned, and therefore the proper manner of assessment should be by way of finding the difference as between the value of the pro­ perty at the time of taking over and at the time of return to the owners. To such amount, may be added the profits that the Government have acquired, and, if there be a dispute in computation of such figure, then so -much may be awarded as loss of profit to the owner as might appear .reasonable. The underlying principle in cases of this kind, where com­ pensation is 'o be paid for use, or^ occupation of the property, is to compute the loss that may have accrued to the owner, and add to it the probable figure, which might represent the profits, which he might have made. If it was a case of permanent acquisition, the matter would have been simpler, because, in that case, the compensation would have to be awarded in consonance with the value of the property, and its potentials for use. but, in the present case, where the property, which was taken over, was returned, the enquiry should center round the fact as to how much losi ha> the owner suffered on account of bis being deprived of the pro-, jperty, and such loss shall be by way of compensation to him for an; [damage to the property, and also for the probable income, which he might Ihave made, had he not been deprived of the possession of the property. The respondents have claimed the following amounts as compto- •ation:— (1) Damage with abnormal depreciation to the fixed assets, viz. machinery ... Rs. 14.82,000.00. (2) Increase to the liabilities during the period of taking over. ... Rs. 83,25,000.00 (3) Loss of profits during tge period of taking over. ... ' Rs. 42,00,000.00 (4) Loss of reputation in the export and local market. ... Rs. 10,00,000.00 (5) Damage caused on account of difficulty in replacement of equipment ... Rs. 10,00.000.00 The learned arbitrator has allowed compensation on the first three items out of the five items enumerated above. The last two items have been rejected, I proceed to consider each one of the items separately. The first claim is in regard to abnormal depreciation, which was caused on account of misuse, or mishandling of the machinery in question. The claim is mainly based on the Report of the surveyors, and such Report is sought to be corroborated by oral evidence that was examined. The reply of the appel­ lant, to that extent, was that Mr. P.K. Shahani of Messrt Shahani & Co. did not represent the Government of Sind in the joint survey. It was further Itated that, in fact, it was not even in the knowledge or the Sind Govern­ ment that any survey had taken place. In an earlier part of this judgment, reference has been made to this aspect of the case, and I have stated that it is very difficult to believe that Mr. P.K. Shahani would, on his own, go to the Mills and start survey proceedings. This surveyor, in his evidence, has stated that an Additional Secretary of the Cabinet Division had asked him to carry out the survey. Fn fact, the order of handing over the premises to the owners of the Mill has also been signed by an Additional Secretary, and therefore the statement of Mr. P.K. Shahani appears to be correct. Sorr. papers, which have been placed before me by the learned Additional Adv cate General, would seem to indicate that the Government of Pakistan was fully aware of the survey, and therefore it is not possible to hold that Mr P.K. Shahani had not been appointed. In the summary that wai submitted to the Martial Law Administrator of Zone 'C by the Chief Secretary on 17-5-1978. it is clearly stated that, the Chief Martial Law Administrator and the Secretary, Ministry of Industries were aware of an assessment made by the survey team, which had been appointed with the approval of the former Chief Minister of Sind. Such a statement coming from highly responsible persons as the Chief Martial Law-Administrator and the Secsetary, Ministry of Industries can hardly be open to doubt. I am left in no manner of doubt whatsoever that Mr. P.K. Shahani, the •urveyor, acted on behalf of the Government of Sind for the purpose of making the survey. Both the surveyors, namely, Mr. P.K. Shabeni a:.d Mr. Mooraj had appeared before the arbitrator There ha? been no cross-examination whatsoever of these two surveyors. What is more that nothing was pointed out by the Additional Advocate General which might go to indicate that this Survey Report is jiot a correct portrayal of the state of affairs in the Mill at the time of return^f the Mill to the owners. At page 9 of Survey Report, unde. «.he topics, "cons' ,uences of 22nd October 1973" tu.u "present condition of the machinery-'.

cc surveyors have stated in details the actual damage to the macbnrty, and the reasons therefore In fact, the surveyors have gone to the utent of staling tfcsi, owing to rough handling of the Mill's machinery, the value has been reduced to two per cent of its replacement cost. Again, at page 13 of the said Report, under the till of "damage caused", it has been stated by the surveyors that the machines had been very badly damaged, and the Mill will have to purchase spare parts, which have been detailed in schedule '£' to the Survey Report. It it stated that, at the time of return of the Mill, only 10000 out of 25000 spindles could be started, and that too after repairs and inter-changing of parts. The surveyors have, at page 11 of the Report, clearly stated thai the depreciation would account for a loss of Rs. 3.62 lakhs, and the replace­ ment of the parts, enumerated in schedule '£' to the Report, would cost Rs. 11. 2 lakhs. The depreciation and damage has. therefore, been worked out and claimed at Rs. 14.82 lakhs. No serious effort had been made by the appellant at the time of proceedings before the arbitrator to challenge the "Report of the surveyors on that aspect of the case. Besides the Report of the surveyors, reference may also be made to the evidence of Mr. Khair Muhammad Khatian, who had been appointed the Controller of the Mill. He has stated that the Mill had been closed on account of electricity having been cut off. He has also stated that there was some damage to the floor. However, these two matters have hardly any bearing on the damage to the machinery, or, depreciation. From the tenor of the evidence of Mr. Khair Muhammad Khatian, it would appear as if the machinery was unfit for use, but that would seem to be absolutely incorrect, because no less than 5043 bales of cotton were in the Mill, and obviously this raw material had been obtained for production of yarn, and, if the machinery' was not working, there was hardly any point in purchase of on cotton. He has, however, admitted that the Mill actually started working or 3-11-1973, viz within about ten days of the take over. This would show that the Mill was in complete working order at the time of take over. A few spindles unay be out of commission, but that is a normal feature in textile mills. Mr. Khatian having said that the Mill was actually started on 3' H-1973. bas aga^in taken a somerasult. and stated that it took about two, or, three months to instal the back process machinery after repairs. This statement has to be discarded in view of what is said by him earlier. On a ruling of the evidence, one is constrained le 1 notice that people having no qualifier lion in relation to textile engineering, or, running of textile mills were associated with this Mill after the taking over. Even a Spinning Master had not been appointed, although Mr. Khatian stated that, for all the six months that the Mi 11 "was with the Government, they were in the; process of appointing a Spinning Master. Mr. Khatian also stated, in his evidence. that, at the time of taking over, the frame had been removed, but he was shown some photographs, which showed that the frames were intact. He was unable to name any of the parts, which were missing. It is significant to take notice of a fact, which has emerged in the evidence of Mr. Khatian , nd the said sentence may be re-produced. It reads as follows :— "U is within my knowledge that, before requisitioning, about 70 percent of the yarn used to be exported, and, during the period of requisitioning, less than 10 per cent was exported". The above statement would clearly show that the Mill was perfectly a working and healthy unit before the take over, and, either for reason of mismanagement, or, lack of technical knowledge, or, gross carelessness, the Mill was not run as a healthy industrial unit. A faint attempt wag made by the learned Additional Advocate General to show that the Mill had been damaged by workmen, but, even to that extent, Mr. Khatian has admitted that to the best of his belief, the Mill bad ff& been damaged by labourers. In juxtaposition the evidence of M-r. Amir Abbasi. the Manager of the Mill, has given a clear position in regard to she functioning of the Mills. Hs has stated that the Mill had been closed, but that was because WAPDA had out down the electric supply. He has stated that, when the Mill was returned, there was "a difference of heaven and earth" in (be quality and condition of the machinery, and that almost 2/3rdofthe machinery was not workable. In the same context, Mr. Illahi Bux Soomro has stated that damage bad been caused, while the Mill had been taken over, and that they wanted to have the condition of the machines and stocks assessed properly before taking possession of the Mill. He has also stated that damage had been caused to the Mill, and the same had been surveyed. I am of the view that compensation of Rs. 14. 82 lakhs awarded on account of damage and depreciation was proper. The next item, that 'o&eds to be considered, is the increase in the liabilities and decrease in the assets of the Mill during the period of take over. This point has been considered by the surveyors on the basis of documents and account books tendered before them. Mr. A. Sattar G. Shaikh stated that, in that regard, the documents had not been placed before, the Court, and therefore nothing could be awarded to the respon­dents on such ground. I pointed out to the learned Additional Advocate Genera! that the proceedings before me were in the nature of an appeal, and there was nothing to indicate that, before the arbitrator, any question was raised with respect to the correctness of the figures stated by th« surveyors. It cannot be overlooked that the Survey Report was before the Arbitrator, and the appellants had full access to it. The appellants have been allowed full and complete opportunity of producing evidence, and cross-examination of the witnesses of the respondents. Indeed some of the witnesses had been cross-examined by them at length, and the crossexamination was relatable to the Survey Report. The appellant did not make any grievance before the Arbitrator in regard to the correctness of the entries in the accounting statements, which have been detailed in schedule 'P to the Survey Report. The pattern of approach by the surveyors in this regard is to take the figures of assets and liabilities s existed on 30-9-1973, viz the date when the Mill was taken over by the Government, and compare such figure with the figures shown in the accounting books on 22-4-1974, viz the date on which the Mill was returned by the Government. The increase, or, decrease in the figure fully partrays the increase, or, decrease in the liabilities and assets. By computation, the figures have worked out, and the surveyors found that the overall liability had, during this period, increased by Rs. 83.25 lakhs. The surveyors have divided the exercise in four parts. id the firstpart, they have calculated the reduction that has taken place in the current assets of the Mil! during the time of take over. They cam to the conclusion that the current assets, which were Rs. 71.18 iakhs on 30-9-1973. had reduced to Rs. 10.31 lakhs on 24-4-1974. There was thus a reduction to the extent of Rs. 87 lakhs. This reduction was on account of tores and spares and stock-in-trade, besides some other minor items. Under the next heading, the surveyors have considered the increase that had taken place in the liabilities of the Mill as between the two datei, m of taking over and return. Under that beading, the accounts disclosed that the Mill had to pay Rs. 1,38 iakhs to the creditors on 30-9-1973. and this liability of payment to the creditors rose to Rs. 11.72 lakhs by the time the Mill was returned. The amounts were in the nature of loans, which the Mil! had to pay, and at Item No. 12,. appearing at page 5 of tehedule «F to the Survey Report, the names of customers, who had advanced money to the Mill during the period of take over were menti­ oned, and likewise were mentioned the names of such persons, who bad •upplied goods to the Mill. What was outstanding by the Mill on the date of return, was surely the liability of the Mill, and had to be paid by the respondents. On 30-9-1973, the liability of the Mil! was Rs. 1.38 lakhs, which had increased to Rs. 11.72 lakhs on 22-4-1974, viz the date of return, so that the liabilities had, during the time of take over, increased by Rs. 10.34 lakhs. Under that topic, the surveyor! have also considered the accrued expenses, viz such amounts, which, as distinct front advances from the customers, or, payment for the good supplied, are payable as expenses for running the Mi!!. Such accrued expenses stood at Rs. 5.17 lakhs at the time of taking over, and had swollen to Rs. 51.64 lakhs at the time of handing over. The major items, which have yielded this high liability figure, are payments which need to be made to the Central Excise and Land Customs, or, in the expense payable account. At the time of taking over, the respondent was liable to pay excise duty to the extent of Rs. 2.19 lakhs, and, at the time of return, this liability had increased to Rs. 35.78 lakht viz by over Rs. 33 lakhs. Even the expense payable account showed an increase from Rs. 2.72 lakhs to Rs. 14.91 lakhs. The accrued expenses, details of which are mentioned in para 13, appearing at — P a Ks 7 of schedule'F to the Survey Report, show that these accrued expenses amounted to Rs. 46-46 lakhs in excess of such expenses as standing on 30-9-1973. Such expenses would clearly be a liability of the appellants. The next item, in that regard, is on account of increase in long term loans, This iterja is dealt within paragraph 14, appearing at page 7 of schedule 'F to the Survey Report, It seems that the main items, raising the liabiliiy on account of long term loans, were on account of overdue instalments not having been paid, and the interest that had accrued on secured loans. Bankers have been associated with the Survey Team, and, with their assistance, the amount was calculated, and it was found that, etween ihe date of taking over and return, the liability had increased Ri. 11.13 lakhs. The last item in that topic is in regard to decrease in fixed assets. The ultimate computation shown at page 8 of schedule'F'to the Survey Report, shows that, during take over, the depreciation had amounted to Rs. 14.44 lakhs. It seems that ihe learned arbitrator has taken a mistaken view in regard to this item, The decrease in the value of fixed assets has been 'awarded under the item of reduction in current assets. A sum of &s !4 4i ! ikn, Iri-tv-en award ;ci i n that regard. The surveyors hav: put a note at the bottom of schedule 'f where they have slated that the} have confined themselves to expression of their views in terms of para 9 of the main Report and schedule 'D'. Para 9 of :he main Report deals with the topic "present condition of machinery". This topic envisages depreciation due to rough handling and damage to fixed machinery. Such depreciation and damage has been awarded by the arbitrator, and a sum of Rj, 14. 82 lakhi stands on that count. In an earlier part of this judgment. I have held that was correct computation. The question, that now arises is. whether depreciation on the total machinery should be allowed once again. If depreciation and damage has been allowed at item Ij, the respondent would be entitled to depreciation on the entire machi­ nery of the Mil), because he is to obtain a sum of Rs. 11.20 lakhs on account of damage to the fixed assets. These fixed assets have to be replaced, and therefore there is no question of depreciation. Elsewhere it is stated that only l/3rd of the spindles #ere working at the time of return, and 2/3rd were out of order. In such circumstances, accumulated depreciation should be awarded only on the remaining l/3rd of the spindles that were working. The arbitrator had v awardcd a sum of Rs. 14.44 lakhi on such count, and I will reduce the same to roughly l/3rd of this amount. On, this, item, I will reduce the amount in the award from Rs. 14.44 lakhi to Rs. 5 lakhs. I must state that the original documents were placed before ibe •urveyors. and the Survey Report indicates that even bankers had appeared before the Survey Team. The account books of the Mill were also avai 1-able. No. item was pointed out by the learned Additional Advocate General as being open to doubt, or, suspicion. The award of Rs. 83.25 lakh account of reduction in the assets and increase in liabilities is modified t the extent that the respondents shall get Rs. 73.81 lakhs on this count. The last item, for which compensation has been awarded, is in regard to loss of profits on account of the Mill being in possession of the Govern­ ment. The Mill had claimed a sum of Rs. 42 lakhs as the loss of profits. In the written statement, such claim was denied, atid it was averred that the Mill should be put to strict proof, and the Government reserved its right to rebut the same. The arbitrator has awarded the full amount of the claim. Admittedly, the Mill was run by the Government, and, for this very obvious reason, the owners of the Mill are entitled to compensation. The sole question then is a 1 """' tbc quantum. Mr. A. Sattar G. Sh& --• t h learned Additional Advocate Gea-.ra has contended before me th — «t.«vidence on the point was not s.-'.cific, and therefore compensatton should «"-t be awarded. He pointed out from the evidence of Mr. Khair Muhammad Khatian that, at the time of take over, the financial position of the Mill did not appear to be satisfactory, and ihat this Mill, which had started in 1968, had, within six years of operation, accumulated losses to the extent of Rs. 20 lakhs. He had also stated that the price of yarn had crashed down in January 1974, because here was a little export in the international market. He had also stated that the price had fallen from Rs. 58.00 per bundle of 20 single counts to Rs. 48.00 per bundle, and the price of a bundle of 10 single counts had fallen from Rs. 52.00 to Rs. 42.00 during the months of February and March, 1974. This witness had also stated that, on the whole, it would be correct 10 say that, during the period of requisitioning, the Mill was working at loss because the market prices were on the low side. On the other hand he had also stated that before requisitioning 70 per cent of the yarn produced was exported but after the requisitioning only 10 per cent : was exported. This state of affairs has to be considered in juxta-position with the fact that Mr. Khatsan was not a qualified textile engineer, ao4 «ven a Spinning Masjer had not been engaged, so that proper goods acceptable in the international market could not be produced. He has stated that the yarn «ent by the Mill to the Brussels byers was rejected on the basis of quality, and he went on to deny that the yarn produced during life period of requisition, was extremely poor, although he stated that it was of average quality. This witness has admitted that 70 to 80 per cent of the spindles were being operated from the middle of December. He was •sked if the proper proceedings of 5043 bales of cotton (which were found in the Mill premises at fhe time of taking over) would have brought a pro­ fit of Rs. 30 lakhs, and he stated that fie could not make any firmed state­ ment. In that context, Mr. Amir Abbasi, the Manager of the Mill had «tated that, during the three years before the take over, most of the produce used to be exported, and each spindle used to produce good amount of yarn. Mr. Khalil-ur-Rehman, a textile consul'ant, was exa­ mined on behalf of the Mills. He claims to be a specialist in textile industry. He has stated, in his evidence, that the period from October - 1973 to April 1974 was a boom year for the textile industry, because ihe price, during this period, was the highest; both locally as well as in the international market. He also stated thai textile equipment installed in the Mill is considered to be the mo:! reputable ": ixttie plant in Pakistan. He has stated that, for the period commencing October 1973 and ending April 1974, by his estimate on the basis of knowledge and experience a plan; of the nature that was fitted'in the Mill could produce profits ranging from Rs. 35 lakhs to Rs. 50 lakhs. This witness also stated that normally such a Mill should have a work force of 800 to 1000 labourers. Documents have also been ,1 a.ced on record to sh.-w the export of cotton yarn from Pakistan for the years 1972 to 1979, and such doucuments substantially ihov that the export of yarn in 1973 and 1974 was substantially higher than the export in the remaining period. In fhar context, Mr. Illahi Bux """ Soomrc, a Director of ihe Mill, stated that they had been exporting 90 pre.cent of the produce. In regard to the plaint, it was sta'ed that it was one of the best when purchased in 1970. He has also staled tha' the -textile industry was having a boom period til! the end of 1974. It would seem that the version in regard to income frcm the-Mill given by Mr. Khair Muhammad hatian was that Mill ran at a loss. As it is, there is ample material on tlu- record to show that the Mill was run most aneconomically. A thousand .v^kmen were sufficient to run 25000 pindles, but the Mil! employed 1400 workmen when only 10000 spindles Were working. The machinery was spoiled either by inexperienced, or, by deliberate mischief. The qualiiy of yarn p;oduced was such as was rejected ro the international market. There is no satisfactory explanation in regard to these factors, which may have reduced the pir'.ts of 'he Mill. But such factors came in existence only after the Mill was taken over by the Governflier-' Besides, huge-liabilities were incutred by ihe Mill, which became the fiabiii'iei ci the Mill on handing over. These factors go to indicate thai, if the Mil! had made no profits, u is attributable to the inefficiency and carer«-r,,Dfcss of ibe management during the time of take over, Bui, asotherwise, the MiiJ had full potentials of providing profit, specially when substantial proportion of the Mill yarn produced was exported. What ii more that the period of take over was a boom period in textile industry, and this is established feature. Mr. Khair Muhammad Khatian has stated that, at the time of take over, the Mill was in financial difficulties. Ther« is no substantial proof of such circumstance. But it must not be over' looked that the Mill had come in existence recently, earlier there was expen­ diture for installation, and therefore the profit may have been lower. There i» reliable evidence on the record that, after the take over, only ten percent produce was exported, and invoice of the Mills, that has been placed on the record, shows that, on 8-2-1974, 61. 415 Lbs. (gross) of cotton yarn were exported, and had fetched a price of U.S. $58,437. 15. This amount was received through the Habib Bank Ltd., and it represents the price only of 10 per cent of the total produce of yarn. Mr. Khair Muhammad Khatian has clearly stated in his evidence that before requisi­ tioning 70 per cent of the yarn used to be exported and after requisitioning, less than 10 per cent was exported. Even if I believe that ibe total yarn exported by this single consignment was of 61,4)5 Lbs., then too, such export, representing only 10 per cent of the total production, would exhibit that the total amount of yarn produced during this period was 10 times the yarn export vfz about 6,00,000 Lbs. The price of yarn in the interna­ tional market is always lower than the price in the domestic market because in the international market, foreign exchange servies as an incentive to the exporters. Even if it is concluded thai the remaining 90 per cent yarn, which was sold in the local markei, also fetched ihe same price, then it is reasonable to assume thai, during the period the Mill was run by the Go^ernmeni, the amount earned by sale of yarn locally would be roughly 9 times the amourii earned by a single export. This jing'e export earned about 58 000-'U.S. Dollars, and therefore the remaining 90 per cen: yarn sold in the domestic markei should havs earned roughly 9 times the amount earned by exports, which would roughtly be 5,50,000 U.S Dollars equivalent to aboui 55 lakhs of rupees. To this, may be added Rs. 6 lakhs earned by export of yarn. This would indicate that the total production of yarn, inspite of the factors, which have reduced production, was about Rs. 61 lakhs. This appears 10 be the factual position if I was to accept the word of Mr. Khatian, the witness for the Government, without demur. But it is also established'case that, on account of ineffi­ ciency and naismanagernent, the production had depleted. Admittedly, only 10000 oufof25000 spindles were working It is, therefore, reasonable (o assume thai, if the Mill would have been worked efficiently, and iu accordance with the established principles for running this industry econo­ mically, the productions should have been at leas; double, viz Rs. 1.22,00,000.00. On thai'production, a net profit of 2> per cent could be considered to be reasonable. In my view, the loss of profit, wh'ch vioi'.'c be awarded to the Mil), is Rs. 31 lakhs. Mr. KhaM-ur-Rehman ihe :ex fe coisalur.:, examined by the Mill before the arbitrator, had also cq profus in (angc between Rs. 35 iak.bs and Rs. 50 lakhs. T.u arbitrator had awarded Rs. 42 lakhs on this count, but t reduce ihe amount on this v tm o Rs. 3t Ukhs. O•: the two remaining counvs, noiivng ia; t>een awarded to the Mills, »nd '.her? is no cross-appeal, or cross-objeciion. In the result, my conclusions are as follows :— (1) Compensation on account of losses due to damage to fixed assets and bnormal depreciation ... Rs. 14.82 lakhs. (2) Loss on account of reduction in the curr­ ent assets and increase in the liabilities and normal depreciation. ... Rs. 73.81 lakhs. (3) Loss on account of loss of profits. ... Rs. 31 lakhs. Total ... Rs. 119.63 lakh». This amount shall also carry interest at the rate of ten per cent as from 1-6-1979, which is in accordance with the rate awarded by the arbitrator. The total amount, with the interest, shall be deposited in Court within thiry days from today. (TQM) Order accodtngly.

P L J 1983 Karachi 89 P L J 1983 Karachi 89 Present: saiduzzaman siddiqui, J Mir MUSTAFA ALI KHAN—Appellant versus Mst. SAFIA MAQSOOD—Respondent F.R.A. No- 860 of 1982. heard on 4-10-1982. (I) Sind Rented Premises Ordinance (XVII of 1979)— •

S. 14—Eviction—Summary procedure for widows etc. for their per­ sonal requirement—Notice—Necessity of—Held: Object of notice being to allow tenant reasonable opportunity of vacating premises where same required for personal use of person in category of persons specified in Section, such notice even if not served prior to initiation of proceeding, object to be achieved in case order of eviction passed after expiry of two months—Held further : Service of notice of application of landlord on tenant and expiry of period of two months to amount to substantial compliance of provisions of S. 14(1) and landlord not to be non-suited on such technical objection only—Order of ejectment in case passed long after expiry of period of two months from date of service of notice of application on tenant— Held: Order of eviction not to be interfered with in circumstances. [P. 9)] B, C & D PL 3 1982Kar. 403 rel. P L J 1982 Kar. 149 not followed, (II) Evidence Act (I of 1872}- within 2 months of the service of notice did not meet the requirement of Section 14(1) of the Ordinance therefore the application of the landlord tinder Section 14 ofthe Ordinance seeking ejectment of the tenant was Incompetent for the aforesaid defect in the notice. The case do support the contention of the appellant's counsel but with utmost respect I am curable to persuade myself to subscribe to the view expressed in the above case. In my humble view the object of notce under Section 14 (!) of Ordinance, is to allow the tenant a reasonable opportunity of vacating premises where it is required for persona! use of the person who is in category of persons specified in this section. The scope of enquiry under Section 14 of the Ordinance was examined by me in the case of VIfat Jffameedv. Birjis Khatoon (PLJ 1982 Karachi 403) and I had held in that case that the enquiry(before the Controller in a case under Section 14 of the Ordinance must confine to the objections raised by a tenant to juris dict'onal facts and not to the genuineness or otherwise of the needs of landlord. A plain reading of subsecton (2) of Section 14 of the Ordinance will show that a landlord is not entitled to avail of the remedy under sub­ section (I) of the Ordinance, if he is in occupation of a building owned by him in my locality and subsection (3) of that Section provides that where the tenant has failed to deliver the possession of the building under sub­ section (1), the Controller shall, on the application by the landlord in this behalf, order eviction of tenant from the building in a summary mannet by u«ng such force as may be necessary. In my humble view wher the landlord makes an application under subsection (3) of Section 14 of th Ordinance, on the allegation that notice was served on the tenant befor filing the application as required under subsection (1) of Section 14 of th Ordinance asid fails to substantiate his allegation regarding service of prio notice at the trial then the object of notice under this section can b achieved if the order is made by the Controller for eviction of tenant afte expiry of the period of two months from the service of notice of applies tion of the landlord on the tenant. The service of notice of application of landlord on the tenant and expiry of period of two months in such circumstances, in my view, w 11 amount substantial compliance of provisioi of subsec'ion (I) of Section 14 of the Ordinance and it will not be proper to non-suit landlord on this technical ground as ne can again ori'ng another application after service of notice to which there can ,be no defence if he otherwise fulfil other qualifications laid down in Section 14 of the Ordi nanc:. I am therefore of the view that the landlady/respondent though did not properly dischage the burden of proving service of notice undet Section 14(1) of the Ordinance on the appellant but for that reason hei application could not be defeated as the order of ejectment in the present case was passed long after the expiry of period of two months from the date of service of notice of her application on the appellant. I thcrerbres find no reason to interfere with the order of Controller and dismiss thin appeal but there will be no order as to costs. However, as the question of law decided by me is of considerable importance and a contrary view has been expressed in a reported case, ! allow four months' time to the appellant io vacate the premises so that he may avail of the remedy of filing a petition for leave to appeal before the Supreme Coart if he so chooses. (MIQ) Appeal dismissed.

P L J 1983 Karachi 92 P L J 1983 Karachi 92 Present : Z. C valiani, J SARWAR ABBAS—Appellant versus Mst. HAJRABAI and 4 Others—Respondents Second Rent Appeal No. 374 of 1982, decided on 19-9-1982. (I) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)— ——S. 13-A—Transfer of property —Intimation to tenant— Held: Provi­ sions of Section not to contemplate anything more than giving of intimation to tenant about death of owner and names of persons inheriting such property and once such intimation given, tenant to have no right to demand heirship certificate or any other legal documents in proof of inheritance—Tenant in case even after receipt of notice tendering no rent end instead demanding proof by way of heirship certificate— Held: Tenant having become wilful defaulter, order of eviction not to be interfered with, [P. 93] A, B & D PL J 1976 Kar. 92 ref. (ii) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)— —•—S. 15—second appeal—Concurrent finding of fact—Interference with— Held. Concurrent finding of fact not to be interfered with in second appeal. [P. 93]C Mr, Kliolld Athar, Advocate for Appellant. Mr. Mubarak Hussaln, Advocate for Respondent. Date of hearing ; 19-9-1982. judgment Appellant above named has filed the above second appeal against the impugned judgment dated 1-9-1980 of the learned lind Addl, District Judge. Karachi, passed in Rent Appeal No. 145 of 1976, by which he conlirm.-d the order of ejectment dated 3lst January, 1976, of the learned 5th Si nor Civil Judge & Rent Controller, Karachi in favour of the respondents, or the facts and grounds mentioned in memo of above appeal. 2. The main contention raised by the Teamed Advocate for the appellant before m; wu>, that since respondents failed to reply to appellants' advocates' letter dated 8th September, 1971 and failed to furnish heirihip ceriiticate in order to establish, that they were the only legal heirs of deceased Mst. Slum.! Jan, the appellant was not obliged to tender rents to them inspuc of their motion under Section I5-A dated 1st August, 1971, and therefore boih the learned lower courts have erred in coming to condusion, that (he appellant was a wilfu! defaulter in payment of rents and consequently the order and the judgment of both the le»rneJ lower courts are liable to be set aside on this ground alone, in view of ihe clear provisions o! S. 1 3-A of the We>t Pakistan Urban Rent Restriction Ordinance, 1959. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1977 Lah. 210 and NLR 1979 p. 629. 3. The learned Advocate for the respondent on the other hand submitted, that the wording of Section ! 3-A does not require the legal heirs of the deceased to produce any proof of their inheritance, beside giving notice as contemplated by Section 13-A of West Pakistan Urban Rent Restriction Ordinance and consequently the request of the appellant to furnish proof by way of heirship certiorate was uncalled for and illegal and as such respondents were not obliged to comply with such request, tn support of this contention the learned Advocate for the respondents feliea upon case reported in PLJ 1976 Kar. p. 92 and submitted that in anolpgy of this case, a provision of Section 13-A ought to be interpreted. 4. I have carefully considered the above submissions made by the learned Advocate before me and have gone through the authorities cited by them as well as through the R&P of the learned lower courts. The provisions of Section 13-A are very clc <r and do not contemplate anything more than giving of intimation to the tenaut about the deaih of the owner and the names of the persons', who have inherited the said property. Once this is done, in my opinion the tenant haft no legal right to demand heirship certificate or any other legal documents in proof of the inheritance, on the part of the legal representative and/or legal hein of the deceased. This view of mine is fully supported by judgment of this court reported in PLJ 1976 Kar. p. 92, which relates, no doubt, to the provisions of Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. 1958. although the said provisions are more strict for purposes of compliance. In addition to this, I find frem the statement of the appellant given before the learned trial court, that during the life time of Mit. Slamti Jan, her two sons namely Ahmad and Karam Elahi mod to collect rents on her behalf and as such at least there was no doubt in the mind of the appellant, in respect of these two legal heirs and as such there was nothing to prevent the appellant from remitting the rent of the premises at least to these two persons for and on ehalf of all the legal heirs of the deceased. The other alternative, that was open to the appellant, in case of his real doubt was, to have moved the learned Rent Controller and deposited the arrears of rents in respect of the premises, on this ground that he was not sure, who are the real legal heirs of the deceased. Unfortunately the appellant did not chose ei her of these options, which were open to him. but kept quiet right upto 1972, when the respondents filed the ejectment application on ground of default. It is an admitted position, when ejectment application in' question was filed, the appellant was definitely in arrears of rents on his own admission frou October. 1970 but he would not be a defaulter for such arrears till actually he received notice under Section 13-A which wasj dated 30th August, 1971 and therefore default committed by him would! bo considered from 1st October. 1971 only. In addition to this, this is a second appeal against the concurrent findings of fact regarding the defaultj p.riod as well as quantum of rent and as such this finding of fact cannot! be interfered with, in second appeal. 5. Therefore, in view of my above conclusions, that the appellant was not entitled for demand the proof by way of heirship certificate, after receiving notice under Section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959. he became wilful defaulter in payment of rents from 1st October. 1971. for all the arrears that were legally dm, from him. 6. Therefore. I find no merits 'n the above appeal, which is conse­ quently dismissed, with no^order as to co.ts. 7. However, before parting with the above appeal since it relates to the residential premises, I would allow period of 6 months to the appellants, mta the consent of the learned Advocate for the respondents to vacate the premises in his <>ccupation and hand over its vacant possession to the respondents, provided the appellant continues to deposit onthly rent of the premises in question, in accordance with the tentative rent order of the learned Rent Controller, in the court of learned Rent Controller. (MJQ) Appeal dismissed.

P L J 1983 Karachi 94 P L J 1983 Karachi 94 Present: G. M. kourejo.j CHANNAN SHAH—Petitioner versus SETTLEMENT COMMISSIONER, Karachi and 4 Others—Respondents Constitutional Petition No. 94 of 1981, decided on 8 7-1982. (I) Natural Justice- —:— Audi alterant pattern —Principle of—Applicability of—Notice of revision served on representative of petitioner in occupation of premises and infact carrying on some business on his behalf—Such representative remaining disinterested in matter and inform! ig petitioner about impugned order only on petitioner's coming back after number of years at his own convenience— Held: Order passed against petitioner being not without notice, no principle of natural justice to be saui to be violated in case. [P. 96] A (II) Writ Jurisdiction— -< —— Laches—Petitioner deliberately rfmaining away from looking after proceedings on account of his negligence and challenging order of Settle­ ment Authorities after about 4 years— Held: Petition to seriously suffer from laches—Constitution of Pakistan, 1973—Art. 199. [P.p. 96 e the transferee of the property in dispute. His fur'her inquiries revealed that respondent No. 4 had filed a Civil Suit No. 2490/78 for recovery of possession against him, on the basis of bis claim of transfer of the property to him in the year 1963. The suit was decreed against him and on filing execution application the respondent No. 4 wa» put into possession of the property in dispute. The petitioner thereafter!? filed a Civil Suit No. 503/81 for restoration of possession to him which ht Ultimately said :o have been withdrawn by him. On further inquiries the petitioner came to know that the transfer order made in his favour of the property in dispute was cancelled "by the order of respondents 1 to 3 vWfe tfeeir orders da'ed 26-4-1975 and 29-9-1977 respectively. He also came to know that respondent No. 5 was claiming the property in dispute by virtue pf sale deed dated 17-6-1980 executed in his favour by respondent No. 4 at its owner. The petitioner, therefore, filed this petition challenging the im­ pugned orders above mentioned passed by respondents 1 and 3 as being illegal and without lawful authority as they were passed without notice to the petitioner, and were in violation of principles of natural justice. 2. The respondent 1 to 3 are official respondents. The case of respondents 4 and 5 is to the effect that the property in dispute was already transferred to respondenl No. 4 in the year 1963 and PTD w«« issued in hi favour an 10-6-1963 and that the site plan for the smra« was also approved by the Deputy Settlement Commissioner on 7-8-1963 nd 30-3-1974 for 57-77 eq.yds. showing the disputed area verified in his site plan aad that the mutation was also effected in the record of the City Deputy Collector and, therefore, the property was no more available for transfer to (be petitioner in the year 1974 and that if at ail he obtained its transfer fr»ia4ulenUy and illegally, it was not at aU lawful and effective. It is further the case of the respondents 4 & 5 that the property was sold by respondent No. 4 to respondent No. 5 and, therefore, the respondent No. 5 isbanafide purchaser for value of the property in dispute from respondent Wo. 4. It is also the case of respondent No. 4 that the impugned orders passed by respondents 1 and 3 in revision filed by the respondent No. 4 were not without notice to the petitioner, as notice was served on his coushi Miskeen Shah who was put in charge of the property by the petitioner during his long abseuee out of Karachi. It is further contended that the petition seriously suffers from laches as it has been filed after nearly six years after the impugned order passed by respondent No, 1 on 26-4-1975 and after a period of about 3 years 9 months from the impugned order dated 29-9-1977 passed by respondent No. 3. 3. I have heard Mr. Abdul Naseer Khan the learned counsel for fhc petitioner and Mr. Abdul Majeed Khan, for respondents 4 and 5. The contention raised by Mr, Abdul Naseer Khan on behalf of the petitioner mainly is that the impugned orders were passed without notice to the petitioner and were therefore ex parte and arc clearly in violation of the principles of natural justice. On the other hand, Mr. Abdul Majeed Khan, the learned counsel for the respondents 4 and 5 tas mainiy raised three fold contention ; Srstiy, that the properly in dispute was already transferred to the respondent No. 4 long back before the transfer m fawur of the petitioner- was obtained illegally or fraudulently ; secondly, that the impugned orders were not passed without notice to the petitioner ; and, thirdly, that the petitioner had an adequate alternate remedy available before the Settlement Authorities and that the petition also seriously suffer from laches. 4. Coming to the contention raised by tfee learned counsel for the petitioner, the impugned order dated 29-9-1977 passed by Deputy Settle­ ment Commissioner, the respondent No. 3. would clearly show that notice of the revision was served on Miskeen Shah who appeared and stated that he lookcd-afier the business of the petitioner, who had gone out of Karachi to Hazara and he did not know as to when he will come back. The order further shows that his statement to that effect was also recorded. Para 6 of the petition itself would clearly show that the petitioner at the time of leaving for Hazara had put Miskeen Shah bis cousin in charge of the disputed property. It is also admitted in the evidence on the record that Miskeen Shah was carrying on business of selling grass on the property in dispute. It would, therefore, appear very clear that the notice of the revision application filed before the respondent No. 1, remanded for hear­ ing to respondent No. 3 was served oft the representative of the petitioner and that it was his duty to inform the petitioner in time to look after the revision petition or had himself to look after it, but be cboe to remain disinterested in the matter for a number of years till the petitioner came back at'his own convenience and he informed him about the impugned orders. I would, therefore, find no' force in the contention raised on behalf of the petitioner that the impugned orders were passed against the petitioner without notice and there appears no force in the contention to the effect that the principles of natural justice were violated. 5. Coming to the first contention raised on behalf of the respondents 4 & 5, it is an admitted position that the property in dispute was transferred to respondent No. 4 in the year 1963 and that the petitioner after coming into its unauthorised possession obtained its transfer order in the year 1974 when the property was not at all available for transfer in his favour. In the situation, therefore, the respondents 1 & 3 on receiving revision application rightly cancelled the transfer order passed in favour of the petitioner. 6. So far as the second contention raised on behalf of the respondents 4 & 5 is concerned. I have already answered while discussing the contention raised on behalf of the petitioner that the impugned orders were not passed without notice to the petitioner as his representative Miskeen Shah had been admittedly served with the notice and it was bis duty to follow the proceedings or inform the petitioner immediately to look after the proceedings, but Miskeen Shah chose to remain silent. I would, therefore, find that notice on the petitioner was duly served and the impugned orders were not passed without notice to him. 7. As regards the third contention, in case the petitioner if at all felt himself aggrieved by the impugned orders having been passed expartt at his back, he had very clearly an adequate alternate remedy available tefriro to file application before the Settlement Authorities for recalling such an order rather than to come in this petition. The petitioner has failed to follow that course and the contention in that respect raired on behalf of the ie -undents is not without force. So far laches are concerned, the petitionicr has failed to explain satisfactorily his absence from Karachi right frenr '.1978 till the petition was filed on 7-6-1981. It does not appeal to reaton that Ntiskcen Shah his cousin who was admittedly put in charge of the porperty in dispute and was actually carrying ob business at his inrtance in the disputed property would either fail to look after the proceedings in revision before the Settlement Authorities or would fail to inform thepetitioner about it. On the face of it, it appears that the petitioner delibera­ tely remained away from looking after the proceedings clearly on account of his negligence. This petition was filed on 8-6-1981 after a period of nearly 6 years after the impugned order dated 26-4-1975 passed by respon dent N9. 1 and after a period of about 3 years 9 months after the impugned order dated 29-9-1977 was passed by respondent No. 3. With the back­ ground above mentioned and in view of the delay in filing the petition, there appears no doubt to me that the petition very seriously suffers from laches as well. The contentions raised on behalf on the respondents Nos. 4 & 5 therefore, are not without substance. None of .the rest of contentions raised on behalf of the parties, in the circumstances, need any consideras tion. 8. In the result, the petition fails and is dismissed with costs. tSHR) Petition dismissed

P L J 1983 Karachi 97 P L J 1983 Karachi 97 Present : saleem akhtar, ) YUSUF— Plaintiff versus ZUBEDA and Another—Defendants C.M A. 283/81 & 1957/81 in Suit No 168 of 1962 decided on 22-2-1982. i i) Civil Procedure Code (V of 1908) - — O. XL, 'R 1 —Receiver — Suit against — Leave — Grant of — Held: No against receiver appointed by court to be filed against him in his official capacity without leave of court though such leave may be granted even after institution of suit — Held further Applicant to be required to show probable cause of action and leave to be usually granted in bonafide claims but where on facts brought on record case <if applicant be without any basis, leave not to be granted. (Pp 98 & 991 A & B AIR 1918 Pat. 100 <T 1 C 7JQ rtf (\) Ciril Procedure Code (V of 1908)— --- S. II -Res judtcata— Principle of — Applicability — Held : Rights of parties once adjudicated, courts to be very reluctant to re-open dispute particularly when applicants be themselves guilty <>f negligence and laches. [P. 99 ]C Mr. Hamza I. All. Advocate for Plaintiff. Mr. Kama! Azhar . Advocate for Defendant No. 1 Mr. Mehar Hussain Mesawa, Advocate for Intervenor Official Assignee in person, Date of hearing 14-2-1982. order This is an application under Order 40 Rule 1 read with Section J5I, CPC. seeking permission to file suit against the receiver. Briefly the facts are that one Dr. Ishaq died on 8-9-1957 leaving movable and immovable properties in respect of which the above administration suit was filed. On 18-11-1963 the Official Assignee was appointed receiver who filed Suit No. 107/68 against the Intervenors for possession of land bearing No. G. P. W. 302, Garden West Lawrance Road, Karachi. The suit was decreed on 9-5-1977. The Intervenors No. 5 and 6 filed appeal which was dismissed. It seems that in the year !978 the Intervenors filed a suit in the Court of Senior Civil Judge, Karachi bearing No. 1143/78 for declaration that (he Power of Attorney dated 11-12-1947 is false and fabricated and that the sale deed registered on 23-11-1950 is null and void. Permanent injunction was also sought restraining the Official Assignee and the owners to execute the decree passed in Suit No. 107/68. The Intervenors have alleged many facts to establish that the attorney who had executed the sale deed was'acting upon a false and forged power of attorney as according to the intervenor the executor of power of aitorney had died even before its execution. In paragraph 16 of the plaint copy of which has been filed by the learned counsel for the Intervenors it has been alleged that "cause of action arose at Karachi within loca! limits of P. S. Preedy and within the jurisdiction of this Hon'ble Court on 22-6-1974 when the plaintiff came to know that the said executant of Special Power of Attorney was not alive on 11-12-1947 when the said Special Power of A;torney was executed in favour of C.C. Pinto on the basis of which the sale deed was executed in favour of Dr. M. Ishaq". The learned Civil Judge has. passed an order that as a receiver has been appointed by this Court Sui'No. 1143/78 cannot be filed without obtaining leave of this Court. (n this back ground the Interverjors has filed this application. Prom rbe allegations made in the plaint it is quite obvious thai duriig the pendency of Suit No. 107/68 the Intervenors had the knowledge that the power of attorney had been obtained by fraud. This plea could have been raised in Suit No. 107/68 when the C.A. had filed it for possession of the said land. Although the suit was deer- ed on 9-5-H'77 the Intervenors did not take any step to plead this fact to challenge the validity of the decree but waited till such time that all the remedies were exhausted. Suit No. 1143/78 was filed as a las resort obviously to delay the execution and frustrate the decree that bad been passed. In the face of the averments made in the plaint which h^s been reproduced above the Intervenors have waited for about 4 y^ars to pass before taking such an action. It k; well settled that where a receiver has been appointed by the Court in respect of any property no suit against the receiver affecting that property can be filed without leave of the Court. Such Itavc can [however be granted even after institution of the suit. It is therefore, necessary that a person desiring to bring a suit against a receiver in his official cipacity should obtain leave of the Court by which he was appointed. There is n,o statutory provision requiring the leave of the Court for filing such action but in Braja Bhusaii v. Srisehand'a (A.I.R. 1918 Pat. ! 00-47 Indian Cases 719). Mullick, J-, held as follows :— "Ther: is no statutory provision which requires a party tc take the leave cf the Court to sue a receiver. The rule has come d<-wn to us as a ptrt of the rules of equity, binding upon all cnglish Courts of Justice in the country. It is a rule based upon piblic policy which requirts that when the CDurt has assumed possess! )n of a property in the interest of the litigants before it, the authority of thai Court is not to be obstructed by suits designed to disturb the possession of the Court. The institution of such suits is in the :ye of the law a contempt of the authority of the Court and tl erefore the party contemplating such suit, is required iq take the leave of (he court so as »o absolve himself from that charge. The giant of such leave is made not in exercise of power conferred by statu e but in exercise of the inherent power, which every court possesses to-prevent acts which constitute or are akin to an abuse of its authority". The Court will usually granted leave to sue a receiver in cases where tonafide claims are.established but it dees not mean that the Court should scrutinise the claim and give a judgnunt on it. Leave will be granted unless it appears clear from the application of the claimant that his demand has no legal foundation. Before obtaining have the applicant •houid show a probable cause of action against a receiver. When on the besis of the petition and the facts that may be bro igbt on record ii becomes clear that the applicant has tardly any basis for his'case, leave! cannot be granted. Applying these principles to the present case i' is clear that the Intervenors inspite of the knowledge did not raise the plea now agitated in Suit No. 107/68 which was filed rytheO.A, and wadecreed. Further­ more the intervenors have waited for about 4 years to see the final result of litigant and then to start fresh rcund of battle. One: the rights of the! parties have been adjudicated the cturts will be very reluctant to reopen| c the dispute particularly when the in'ervenors are guilty of negligence and! laches. If the Intervenors had raised this plea in the suit or filed suit! within a reasonable time peJhap: the consideration might have been different. The application is therefore dismissed. (MIQ) Application dismissed.

P L J 1983 Karachi 99 P L J 1983 Karachi 99 Present : B.G.N. kazi, J Mst. Ff- TIM A—Appellant versus Mst. HANIFA ANJUM—Respondent First Rent Appeal No, 233 of 1980, decided ->n 25-5-1982. Summary Military Courts (Validi tion of Orders) Ordinance (I of 1980)— S. 2 read with M,L.O. No. 20— Para . 5 (b) and Sind Rented Premises Ordinance (XVII of 1979)- S. 21—Summary Military Court—Eviction order by—Challenge to—Pet tioner challenging order of eviction passed by Summary Military Court on ground of same having been passed even without supplying copy of application to tenant or informing her about claim for personal use or requirement of landlady— Held: Copy of application having not bee i made available to appellant and she having been given only opportunity of making statement without knowing case of" opposite party, order of < viction not to be sustainable. [Pp. 100 & IQI]A&B Mr. K. B Bhutto. Advoc tie for Appellant. Mr. N.A. Khokhar, Advocate for Respondent. Date of hear Inn • 9-5-1982. JUDGMENT The four appeals arise from the order of the President, Summary Military Court 'G' dated 24!h October, 1977 by which Mrs. Aziz wife of Abdul Aziz and Mr. Nevill Herbert Williams .tenants of House No. 21-E. Block No. 2. P.E.C.H.S., Karachi were directed to band over vacant possession to owner Mst. Hani fa Anjum by fst January, 1978. Both the tenants, namely, Neviil and Mrs. Aziz (Mst. Fatima) had filed Consti­ tutional Petitions Nos. D-886 of 1977 and D-887 of 1977 on 13-12-197" challenging the aforesaid order. However, the Summary Military Courts <Validation of Orders) Ordinance 1980 (Sind Ordinance No. 1 of 1980) was promulgated and took effect on 19-1-1980, Section 2 whereof inter alia provided that an order pissed by a Military Court at any time after 16ih August, 1977 in any proceeding under M.L.O. 20 shall be deemed 10 have been passed under the Sind Rented Premises Ordinance, 1979 as if the aid Ordinance was in force at the time when such order was passed and shall be deemed always to have effect accordingly. Subsection (2) of the aforesaid Section 2 provides tha' an aggrieved person by any such order may within 30 days of the commencement of the Ordinance prefer an appeal to the High Court. It would appear that both the tenants, as a matter of abundant caution, filed First Rent Appeals Nos. 233 and 234 of 1980, but as the same were presented on 19-3-1980 more than 30 days after the commencement of the Ordinance on 19-1-1980, and further since by the order dated 16-2-1981 of a D.B. of this Court. Petitions 886 of 1977 and 887 of 1977, among others, were treated as appeals under sub­ section (2) of Section 2 of the Military Courts (Validation of Orders) Ordinance, 1980 from the date of the commencement of the said Ordi­ nance, Mr. K..B. Bhutto, the learned counsel for the appellants, has no! pressed F.R.A. 233 of 1980 and 234 of 1980 which are therefore dismissed. Both the First Rent Appeals, namely, Nos. 125 and 126 of 1983 challenge the same impugned order. It is the contention on behalf of both the appellants that on 18-10-1977 they each received a notice of the same dale from the Summary Military Court 'G', for appearance on 20-10-1977 in some case filed by Mst. Hanifa Anjum. It is contended on behalf of both tbe appellants that they had not got any copy of the application and did not therefore know of the case they had to meet. No opportuniiy was afforded to give evidence in defence The record only shows the proceedings on 24th day of October, 1977. The statement of Flight Lt. Tariq Mansoor son of the respondent, who herself did not give evidence, was recorded. The statement of appellant Mrs. Aziz (Mst, Fatima) defendant and Mr. Nevill defendant (appellants herein) were also recorded. A perusal of the notice would show that, alihough there was mention of petition of Mst. Hanifa Anjum under M.L.O. 20 there was no indication of the nature of the dispute, although the cases which could be decided by the Summary Military Courts are listed from clauses (a) to (/) in Section 2 of M L.O. 20. It is also apparent from the statements of the defendants (herein appellants) that they spoke about regular pay­ ment of rents but did not make any statement about the matter referred Jo in the finding recorded by the Summary Military Courts which concern the personal need of the landlady, and mentions that the tenants were not .{vacating as they were paying very less rents, it is consequently clear that lahhough under Section 5 (b) of M.L.O No. 20 the Military Court may examine such oral or documentary evidence in support of the petition dr| any defence by the opposite party, the procedure adopted eliminated thej very possibility of doing so as no copy of the petition was made available! to the tenants and they were obviously not informed about the claim for! personal use or requirement of the landlady. In Abdul 'Qadir . A mina Begum and others, a decision of this Court reported in MLR 1981 Civil 523 it was held that validation conferred by Military Courts (Validation of Orders) Ordinance upon orders under M.L.O. 20 passed by Summary Military Courts does not extend to an ejectment order passed in a case wjiere ihe tenant was summoned by rhe Military Court without furnishing a copy of landlady's application and the order of ejectment was passed the day. In the instant case, as alreadyl stated, it is apparent that no copy of the application was made available!- to the appellants and they were given only the opportunity of makingj statement without knowing what case they had to defend. The impugned! order therefore cannot be sustained and the appeals are allowed, and the order set aside with no order as to costs. The respondent will be free to file appeal under the Sind Rented Premises Ordinance, 1979 which inci­ dentally provides expeditious relief to widows uner Section 14 thereof, » (TQM) Appeals allowed.

P L J 1983 Karachi 101 P L J 1983 Karachi 101 Present : nasir A. zahid & fakhruddin H. shaikh, JJ Messrs PAKISTAN GUM INDUSTRIES Limited— Applicants Versus COMMISSIONER OF INCOME TAX (East), Karachi—Respondent Income Tax Case No. 82 of 1972, decided on 8-9-1982. Income Tax Act (XI of 1922)— — Ss. 2 (6-BB) & 55— Free reserve — Levy of tax on— Unappropriated profits of assessee — Liability to suffer tax — Held: Provisions of clause 6-BB in S. 2 of Act added in !968. having not been g.ven retrospective effect, term "free reserve" to be given its ordinary dictionary meaning for assessment year 1967-68 and unappropriated profits of assessee not to be treated as "reserve" or "free reserve". [Pp. 102 & 103] A & B P L D 1960 SC 48 rel. Mr Alt Athar. Advocate for Applicants. Mr. Nasrullah Awan, Advocate for Respondent Date of hearing 8-9-1982. Nasir A. Zahid, J. — This is an application by the applicant/assessee, Pakistan Gum Industries Limited, under Section 66(1) of the Income-Tax, Act. 1922. Two questions were referred in this application for our opinion However, with the consent of both the learned counsel, we have re-framed the questions, which is as follows : — • Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that unappropriated profits of the assessee foi the assessment year 1967-68 were "free reserve" and as such liable to , super-tax ? 2. In this case the Income-Tax Officer, who made the assessment for 1967-68 in respect of the appiicant/assessee, treated un-appropriated profiis of the assessee for the year in question as free reserve, which was then subjected to super-tax. The applicant filed an appeal, which was dismissed by the Appellate Assistant Commissioner. A further appeal was filed before the Income-Tax Appellate Tribunal, which was also dismissed by their order dated 26-7-1971. The appiicant/assessee then filed the present application. 3. We have heard Mr. A!i Athar, Advocate for the applicant and Mr. srullah Awan, Advocate, who represented the respondent. Commissioner fncome-Tax (East), Karachi. The point for our determination is whether 'ring the assessment year ia question i.e. 1967-68, un-appropriated profits of the assessee could be treated as "free reserve" and then subjected to super-tax. Finance Act, 1967, made provisions for levy of income-tax on free reserves but did not defne the term "free reserve". However, by Finance Act, 1968, a new clause 6-BB was added after clause 6-B in Section 2 of the Income-tax Act, 1922 and "free reserve" was definedtherein as follows :—. "(6-BB)" Free reserve < in relation to a company meanr such reserves of acompanyas the Central Board of Revenue may by notification in the official gazette, declare' to be free reserves of a company and includes any unappropriated profits of a company." It was contended by Mr. Ali Athar, learned counsel for the applicant/ assessee, that the definition of "free reserve" in the Finance Act, 1968. is "not retrospective and did not apply to the assessment year in question i.e. assessment year 1967-68 of the assessee and that prior to 1-7-1968, the term "free reserve" was not defined and the term then should have been given its ordinary meaning which would not include the unappropriated profiis of a company. Learned counsel relied upon the case of Commissioner oflncome- Tax. Lyallpur Cotton Mills reported in PLD 1960 SC 48, in which the Supreme Court of Pakistan, while interpreting the term "reserve" in Schedule II of the Business Profits Tax Act of 1947, held that profits lying un-utilised and not specifically set apart for any purpose on the crucial date did not constitute "reserve" within the meaning of the rule in question and that the word "reserve" should be given its plain and dictionary meaning that is there asust be some setting, apart of the amount for some speciaf or general purpose by a person or by a body authorised under the articles of association of the company to allocate the funds for particular purposes and where this was not done, the unappropriated balance would not be a "reserve" within the meaning of the rule in question. The principle laid down in PLD i960 SC 48 applies to the point raised in the instant case. In the instant case, unappropriated profits of the appiicant/assessee, cannot be treated as a "reserve" or "free reserve" if these terms are given their ordinary dictionary meaning. Mr. Nasruliah Awan. learned counsel for the respondent/Department, was not able to refer to any other judgment where the word "reserve" has been interpreted to include unappropriated piofits of a company. 4. If the definition of "I'ree reserve" introduced through the Finance Act, 1968, can be given retrospective effect, the unappropriated profits of P£ would have amounted to a "free reserve jected to super-tax for the assessment year laqacfriinz. ff<?trfy£r, m find from a reaaing cA \Y> Svrvfcsiee A.ct of 1968 that this provision has no' been given retrospective effect and, therefore, for the assessment year "in question there is no statutory definition of "free reserve", which term is to be given its ordinary dictionary meaning for the period in quessior We have already observed that the ordinary dictionary meaning of the term "free reserve" will not include unappropriated profits of a company. 5. In the circumstances the reframed question in the present case is answered in the negative. There will be no order as to costs. (TQM) Order accordingty.

PLJ 1983 Karachi 103 PLJ 1983 Karachi 103 Present : naimuddin & munawar Au khan, JJ KHALID TAQI KHAN—Petitioner versus THE STATE and 2 Others—Respondents Constitutional Petition No. D-263 of 1982, decided on 3-5-1982: (I) Writ Jurisdiction— — ~Res Judicatd'— Principle of—Applicability—Earlier writ petition arising from same background but parties as well as reliefs sought in two peti­ tions being different, held, respondents (No. 2 & 3) being not party to previous petition not to invoke principle of res-judicata for dismissal of petition on such ground. [P. 105] A ^ PLJ 1982Quetta41 ref. (II) Police—

Order by—Remedy against— Held: Person,aggrieved by order made or action taken by police to be competent to agitate matter in. court of com­ petent jurisdiction by filing direct complaint. [P. 105 ] B (Hi) Criminal Procednre Code (V of I898>~ •

S. 200—Complaint—Filing of by Police Officer—Competency of— Held ; Police Officer associated with case to be bound by orders passed by his superiors notwithstanding his personal dislikings and not to turn round to assume rule of private individual for purpose of filing direct complaint [P. 106 } C (b) Poajab Police Roles, 1934—

R. 14.7—Police Officer—Conduc'.of— Held :»Po!ice OfScer to be pre­ cluded from agitating any matter wherein erroneous view taken of bis conduct in'court of law in direct complaint or otherwise. [P. "106 ] D (v) West Pakistan Government Servants (Conduct) Roles, 1966— -—R. 27—Vindication by Government Servant— Held : Government Servant to have no recourse to any court for vindication of his public ac's and character except with prior permission of Government—Police Officer in case lodging report at Police Station against respondents after case previously registered dropped under orders of Martial Law Authorities— Held: Petitioner not to be permitted to vindicate such act (of lodging report against respondents) without prior sanction of Govern­ ment— Held further : Direct complaint by which petitions sought to vindi­ cate his public net bein^ unauthorised by Government to be without l»ga! backing. fP. 106] E& F Mr. Mohammad Hayat Junejo & Mr. Gul Zaman Khan, Anvocate for Appellant. Mr. Khalld M. Ishaq and Mr, Raja Haq Nawaz, Advocate for Respor.- dent Mr M.I. Memon, A.A.G. for the Stale. JUDGMENT Munawar Ali Khan, J—This is a writ petition under Article 9 of the Provisional' Constitution Order, 1981. As disclosed in the petition, the feti-tioner Khalid Taqi Khan was working as AS1 at Police Station, Ferozeabad, Karachi when all the Police Stations including that of Ferozeabad within the Disiiict (East) Karachi were required to arrange police pickets at places believed to be frequented by the notorious criminal Suleman Buledi, in order to apprehend him. On 17-8-1979, the petitioner accompanied by two police constables : namely Nadir Ali and Mohammad Ramzan proceeded to the Nursurey Super Market and Medical Store, one of the picket paints. In the next morning, at about 1 a.m., the petitioner saw respondent No. 2 - « who happens to be the proprietor of the aforesaid store hand ng a bottle of Whisky (Jhony Walker-Foreign make) to the respondent No. 3, the sales­ man of store, for delivery it to Afzal s/o Abdul Rehman and Mir Javed Zahir s/o Imam Bux Zahri sitting in a car parked in front of the store. However, before the bottle was passed on to the occupants of the car, the petitioner swiftly intervened and arrested both the proprietor and the sales­ man (respondent No. 2 & 3) under a mashirnama prepared in presence of the Witnesses. Some foreign currency was also recovered from personal search of the respondents. The petitioner registered a case at the Police Station (vide C ime No. 275/79) under Section 3/4 of Prohibition (Enforcement of Hudood) Order, 1979. The case was investigated by ASI Kbadim Hussain and the investigation was verified by • the SHO Ghulam Samdani and PCS? and was approved by SDPO, Ferozeabad. Somehow the case was ultimately dropped and shown as disposed of under Sections 169/173 Cr P.C. under the orders of the Martial Law Authorities. Being dis-satisfied with the manner of disposal of the case, the peti­ tioner tjjqjc up the matter with higher authorities but with no result. He then filed a direct complaint in Court, which was however dismissed by the ACM VI (East) by order dated 3-10-1981. The revision preferred by him from his order also failed vide order dated 2-2-1982 of the Ilnd Additional Sessions Judge, Karachi. These two orders have been impugned in this petition. Meanwhile, the petitioner along with others has been involved in a corruption case, as a sequel of the cancellation of the criminal case registered against respondent nj. 2 & 3 as stated above. The petitioner has made a separa'e application for staying the proceedings in the corrup.ion case until disposal of this petition. The learned counsel of both the parties were heard at great length. In course of their arguments, the points that emerged for consideration may be summarised as under :— (I) the petitioner's earlier Petition No. 2/82 in respect of the same cause of action having been dismissed as withdrawn, this petition is barred by res J&dfcata. (It) the aforesaid criminal case having been dropped by the order of the S P. who is Superior Officer of (he petitioner, the order it binding on the latter. (til) the criminal case against the respondents No. 2 & 3 was dropped under the orders of Martial Law Authorities therefore, the validity of the action cannot be questioned. ft was vigorously argued on behalf of the respondents that in'view of the withdrawal of the earlier position, this petition is not competent. In this connection reference was made to the case of Wajad and two others v. Mir Mohammad Baluch and another (PLD 1982 Quetta 41). It was held in this case that the genera! principle of res judicata is applicable 10 writ petitions also. It was further noted by the learned Judge of Baluchistan, High Court that same view was taken by the Supreme Court in the case reported as Mohammad Chiraghitddln Bhattl v. Province of West Pakistan through Collector of Bahawalpur (1971 SCMR 447). There is no doubt that the earlier petition arose from the same background namely the cancellation of the criminal case registered against the respondents No, 2 & 3. But the parties as well as the reliefs sought in the said petition being different, from those of the present petition, the principle enunciated in the case of Baluchistan High Court would not be attracted. The respondents No. 2 & 3 not being party to 'the previous petition, could not invoke the principle of res judicata, praying for dismissal of the petition. ft was next submitted by the learned counsel for the respondents that the order by which the criminal case was dropped was made^by Superior Officer of the petitioner and as such it was binding on him. Consequently he was precluded from challenging the order at any legal forum. In support of his argument the learned counsel placed reliance on Police Rules, 1934 and the Government Servants Conduct Rules. 1%6. (n replv to this argument, the learned counsel for the petitioner cited «everal authorities in order to show that there was no bar on the petitioner from going into Court in direct complaint to, assail the aforesaid order. We did not deem fit to go into those authorities because the proposition laid down by them was not disputed. There Lsl absolutely no controversy on the point that a person aggrieved by the! order made or action taken by police can against the matter in Court off competent jurisdiction by filing a direct complain!. The only question that engages our attention is whether the petitioner was the aggrieved person and if so, if he could challenge the orders of his superior officers. There is no denying of the fact that the petitioner dealt with the case under consideration in his capacity as a Police Officer He was not interested in the case personally in his private capacity. more so when even the investigation in the case was conducted, not by him, hut hy some other Police Gilbert It is true thai ,1 report/ complaint about commission of a criminal offence, not report able- by any specified person under the law. can he lodged even by - person who is not directly or personalty concerned. But U) 'he instant c^tse <he position was enliicly dirVei eni in that the pe'itimie.i whn was tissoriutcd with ihr case as a police officer could not turn round and assume the role of private individual for the purpose of filing a direct complaint. In such an eventuality on one hand he would be bound by the orders passed by his superiors, notwithstanding his persona! disliking, while on the oilier hand he would be opposing the same orders, if a police officer is allowed free hand in this manner, it will seriously impair the service discipline, entailing j, disastrous consequences, indeed the service discipline is enforced more vigorously in the Police Department than any other Government Depart­ ment. In this connection we may refer to rule 14.7 of the Police Rules. 1934. It reads as under :-- "14.7. A Police Officer shall not record comments on the remarks made by Superior Officer. If a Police Officer considers that an erroneous view has been taken of his conduct of any matter affecting his administration he may refer the question in a temperate manner through the proper channel". This rule obviously lays down the procedure for guidance of the police officer who wants to agitate against the erroneous view taken about his fconduct or any matter affecting his administration. It impliedly precludes Jjhim from taking any such matter in Court 'of law in direct complaint or ^otherwise. Our attention has also been drawn to rule 27 of W. P. Govt. iServaats (Conduct) Rules, 1966. It is as follows :— "27. Vindication by Government Servants of their public acts or character.— (I) A Government Servant may not, without tlie previous sanction of Government, have recourse to any Court or to the Press for the vindication of his public acts or character from defamatory attacks. When Government grants sanction to a Government Servant to have recourse to a Court, Government will ordinarily bear the cost of the proceedings, but may leave the Government Servant to institute them at his own expenses. In she latter case, if he obtains a decision in his favour, Government may reimburse him to the extent-of. the whole or any part of the cost (7) Nothing in this rule limits or otherwise affects the right of a Government Servant to vindicate his private acts or character"' It clearly shows that Government Servant cannot have recourse to - any Court for the vindication of his public acts and character except ^ with prior permission of the Government, He is however free to defend his private acts and character. The lodging of the report at Police Station in the case against the respondents was obviously a public act of the petitioner. He was not permitted to vindicate such act without prior sanction of the Governmeni. The- direct complaint by which he sought to vindicate his public act referred to above being unauthorised by the Governmeni was therefore without legal backing. It is clear from the record that he filed direct complaint after he had been involved in the corruption case. This explains the delay of about two years in filing the direct complaint which cannot but be heM as a step on the part of the petitioner to vindicate his public act mentioned above. As pointed out above, be could have recourse to Court only only after obtaining the necessary sanction from the Government. We do not see any justification < 10 make departure in this case and condone the prece'dure followed by the petitioner which is in utter disregard of the rules. It was further submitted hv the Seamed counsel for the respondents that the direr! comnlaint filed by petitioner was not a "complaint" within the meaning of Section 4(1 )(h) Criminal Preeedure Code. As defined in this Section, "complaint" means allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but tt does ml include a report-of police officer : We have made it abundantly clear that the petitioner's role in relation to the criminal case against the respondents bad been of official character. He could not deal with the case in double capacity at early stage as a Police Officer and at later stage as a private individual. His so called direct complaint was therefore nothing but « report from a police officer and as such it is excluded from the definition of complaint. Consequently it could not be entertained as direct complaint. The next point ee^a'.ed at bar was whether dropping of the criminal «&se which was made under the orders of Marrial Law Authorities could be questioned in Court of Law. In view of our findings on the first two points, we need not go into this controversy. For above reasons we dismiss the petition in llmlne. (!DK) Ptsition dismissed.

P L J 1983 Karachi 107 P L J 1983 Karachi 107 Present: fakhruddin H. shaikh. J SIND ALKALIS LIMITED, Karachi through Managing Director- Petitioner versus PRESIDING OFFICER. IVth SIND LABOUR COURT, Karachi and 2 Others—Respondents Constitutional Petition No. S-73 of 1982. decided on 5-^-1982, (i) Labour Coart—

Proceeding's before—Civil Procedure Code (V of 1908>—Applic­ ability of—Held:' Principles laid down in Ss. 20 & 2! to be applicable to oroceedings before Labour Court—Industrial Relation Ordinance (XXIII of 1969)—S. 36. [P. 109] A <ll) Civil Procedure Code (V of 1908)- ——S. 20—Place of suing—Objection as to— Held : Objection as to place of suing, unless taken in court of first instance at earliest opportunity, not to be allowed by any appellate or revisional court-Petitioner in case taking no objection as to territorial jurisdiction until entire evidence of respondent and statements of witnesses of peti­ tioner panly recorded— Held : Court justified in rejecting objection as to territorial jurisdiction. [P. 109] B (Hi) Juribdiction- — — Lack of— Held: Order to be void ab fnltio where same passed by authority without having inherent jurisdiction in matter. I [P. 109] CJ PLD 1968 Lah. 144 ref. (ir) Industrial Relations Ordinance (XXIII of 1969)—

S. 37 (?)—Transfer of cuse—Effect of—Labour Appellate Tribunal on reference by Labour Court transferring case lo seme other Labour Covn—ffeld : There being no lack of inherent jurisdiction in Pre­ siding Officer of Labour Court to take cognizance of petition of respondent, evidence recorded by such Couri not 10 be expunged from record simply for reason of cause of action having ro: accrued wiihin its territorial jurisdiclion. [P. 11J] D Mr. Mamoon Kail, Advocate for Peti>»oner Mr. Alt Amjad, Advocate for Respondent No. I. Nemo for Respondent Nos. 1 and 3. Date of hearing : 23-8-1982. judgment The petitioner is a Limited Company which has been taken over by Ihe Government under the Economic Reforms Order, 1972. This Com­ pany has its Headquarters situated at State Life Building, 1. I. Cbundrigar Road, Karachi, whereas its factory is situated at Landhi. Respondent No. 2 was employed in ihe factory at Landhi till 9th August, 1980. He was transferred on the above date to the Headquarters. He, however, applied for leave. Meanwhile he was transferred to the petitioner's office at Lahore, but he did not join there. On 3-12-1980 a show-cause notice was issued by the petitioner to Respondent No. 2 in which inter alia it was alleged that Respondent No. 2 had made false statement regarding illness in his application for leave. Ultimately Respondent No. 2 was dismissed by the Managing Director of the petitioner by his order dated 9-5-1981. This order was challenged by Respondent No. 2 by a grievance petition before Labour Court No. IV wiihin whose jurisdiction the factory at Landhi was situated. The petitioner has filed this petition challenging the territo­ rial jurisdiction of Labour Court No IV on the ground that the cause of action accrued at ihc Head Office of Ihe petitioner's office situated at I.I. Chundrigar Road, Karachi which falls wiihin the territorial jurisdiction of Labour Court No. V Earlier the petitioner had also moved the Presiding Officer of ihc Labour Court No. IV challenging his territorial jurisdiction but the. learned Presiding Officer dismissed the application by his order dated 4-3-1982 inter alia on the ground that the objection as to territorial jurisdiciion was raised as the stage when the evidence of Re$pondent No. 2 was over and the statements of the wimesses of the petitioner were also parily recorded and only cross-examination was reserved. According to the learned Presiding Officer, objection as to territorial jurisdiction should have been raised at she earliest stage. Probably the learned Presiding Officer bad the provisions of Section 21 of C P.C. in his view, while taking the above decision. Thereafter the present petition was filed. Later on the learned Presiding OfTber had made a reference to the Labour Appellate Tribunal lor iransfer of ihe case to some other court. This reference'-was accepiod and the case of Re>pondent No. 2 was transferred to Presiding OflL-ef, ill Labour Court, Karachi, who was added as Respondent No. 3 to ihis petition by amending the original petition. 2. The short question that falls for determination in this case i», whether wrong aNSuniption of territorial jurisdiction by an authority would render all ihe order', made and proceedings taken by :hat authority as null and void ? Mr. Mamoon Kazi learned counsel for the petitioner hat teferred to Section 20 of the C.P.C. and relied »<n several cases in support of his argument that any order passed by an authority, who had no territo­ rial jurisdiction to entertain a matter, shall be deemed to be null and void. Most of the authorities relied upon by the learned counsel parlies to Jack of inherent jurisdiction and not lack of territorial jurisdiction. However, the only relevant case which refers lo wrong assumption of territorial jurisdic­ tion is that of M/s, Habib Bank Ltd., Gujra/iwala v. Kfialld Javed and two ^fliers (1973 P.L.C, 144), This was a case decided by Punjab Labour Appel­ late Tribunal. In this case a grievance petition was entertained and decid­ed by the Labour Court which bad no territorial jurisdiction in the matter, ft was held by the Tribunal that the order passed by the Labour Court wan liable to be set aside. Consequently the order passed by the Labour Court was set aside. By making the above order the learned Tribunal also made reference to explanation 2nd of Section 20 of the C.P.C. 3. With due respect to the learned Tribunal it may be stated that his attention was not drawn to Section 21 of the C.P.C. Alihougfa it has been emphatically argued on behalf of the petitioner that C.P.C. is not applica­ ble to the proceedings before Labour Courts ; but the cases cited by the learned counsel for the petitioner cootain reference to Section 20 of the C.P.C. from which it would transpire that at least the principle laid down in Section 20 or for that matter Section 2i is applicable to proceedings before Labour Courts under the Industrial Relations Ordinance, 1969. Section 21 C.P.C. clearly states that no objection as to place of suing shall be allowed by any appellate or revisional court unless such objection wai taken in the Court of first instance at the earliest possible opportunity. The learned Presiding Officer of Labour Court No. IV has specifically men­ tioned in his order dated 4-3-1982 referred to above that no objection was taken as to territorial jurisdiction of his court by the petitioner, until after the entire evidence of the worker i.e. Respondent No. 2 was recorded and the statements of the witnesses of the petitioner was also partly recorded, fn this view of the matter, the learned Labour Court was quite justified in rejecting the objection as to territorial jurisdiction. 4. It will be pertinent to observe that lack of territorial jurisdiction should be distinguished from lack of inherent jurisdiction. Wherever ant authority passes an order in a matter in which it has no inherent jurisdic-L tion, then the order shall be deemed so be void ab Mtlo and non-existent! in the eyes of law. For example a Illrd Class Judge who is not vested withj the powers of Rent Controller, assuming jurisdiction of Rent Controller passes an order of ejectment, ihe order shall be void ab Mtio. Similarly if a Magistrate 1st Class tries and decides a case which \t exclusively triable by n Court of Sessions, or a .Special Judge Anti-Corruption decides a case in which no sanction to prosecute a Civil servant has been obtained under the Criminal Law Amendment Act, 1958, then orders passed by such Magistrate and Special Judge shall be deemed to be null and void for want of inherent- jurisdiction. 5. Reference in this connection may be made to the case ofS.y<. Laiifv. Nadir Kkan (PLD 1968 Lah. 144) in which the objection relating to territorial jurisdiction of a Court was distinguished from one as to inherent jurisdiction of a Court. The relevant observation made by Single Judge in the above c se may be icproduced with advantage. The same is as under "It is now well .established that the validity of a decree can be chal­lenged in execution proceedings on the ground that the court which passed the decree was lacking in inherent jurisdiction in she sense that it could not have seizers of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering >ihe court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. In Ahmed & Co. v. Mbhammad Sidiiique (PLD 1965 Kar. 293) it was held : 'The only ground' which has been recognised by Courts which can be urged in execution proceedings as regards the validity of the decree is that the Court which passed tl.e decree had no jurisdiction to do so. Such absence of jurisdiction must be inherent. Except in such cases the execution Court has no juris­ diction to go behind the decree. An objection relating to the territorial jurisdiction of the court is not one which is inherent in ihe Court. If the Court has not the territorial jurisdiction but is precluded to try the suit on the ground that it had do jurisdiction in the case on account of the subject-matter or the persons who are parties in the case, or because of the value of the suit. it does not lack in inherent jurisdiction. A provision in a statute for territorial jurisdiction contains & direction to a suit or and not to the Court and does not purport to deal with inherent or general jurisdic­ tion of a particular Court or purport to deprive any such Court of its jurisdiction in the event of its non-compliance. It is for this reason that in Section 21 of the Code of Civil Procedure it is clearly provided: 'No objection as to the place of suing shall be allowed by any appel­ late or revisional court -unless |uch objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice." In the present case it is not pleaded that the Labour Court lacked inherent jurisdiction in the matter. The case of the petitioner is that a particular Labour Court had no jurisdiction in the matter because the cause of action had accrued within the territorial jurisdiction of some other Labour Court. It is not denied that the grievance petition filed by Respon­ dent No. 2 was triable by a Labour Court. Thus there is no plea of lack of inherent jurisdiction in a matter of a Labour Court. The objection is that the cause of action did not accrue to the worker within the territorial juris­diction of Labour Court No. IV in which he had filed his grievance petition. In view of provision of Section 21 of the C.P.C. the objection of the ' petitioner must be disallowed. , ft has been stated in (be petition (hat the petitioner is running a factory at Landhi. It is not the case of the petitioner that the factory situated at Landhi and the Head Office situated at I.I. Chundrigar Road are two separate entities. On the contrary from the petition it would transpire that both the factory and the Head Office constitute one entry. Hence even according to explanation II of Section 20 C.P C Respondent No. 2, was entitled to approach any -Labour tourt within whose territorial jurisdiction the factory at Landhi was situated or where the Head Office was situated, i.e. either Court No. IV which had jurisdiction over Landhi or Court No. V which according to the petitioner, had jurisdiction over I.I. Chundrigar Road where the Head Office was situated. Attention of the learned counsel for the petitioner was drawn to the transfer order of the Appellate Tribunal whereby \he case of Respondent No. 1 was tramferred from Court No. IV (Respondent No. I) to Court No, HI (Respondent No. 3). It was urged on behalf of respondent that if there was any error on the part of Court No. IV in assuming wrong territorial jurisdiction, it should be deemed to have been corrected by the Appellate Tribunal, who was empowered to transfer a case from one Labour Court to any other Labour £%?<?. 2&/JfJ/ ; l t>JM>Jf)fatot ^petitioner argued that although Labour Court tfo. (d t fail be entitled to proceed wiib the mallet fa view off fit transfer order made by the Appellate Tribunal, but it shall have to proceed with- the case de ttovo because ail proceedings taken by Court No. IV who had no terriiorial jurisdiction in the matter shall be deemed to be null and void and should be expugned from the record. The argument has no substance. As already held above, there was no lack of inherent jurisdic­ tion in the Presiding Officer of Labour Court IV to take cognizance of the petition of Respondent No. 2 Hence the evidence recorded by that court cannot be expugned from the record simply for the reason that the cauie of action did not accrue within his territorial jurisdiction. In n\cv of \Vve above legal position, this petition has no substance and it. therefore, dismissed with no order as to costs. (M1Q) Petition dismissed.

P L J 1983 Karachi 111 P L J 1983 Karachi 111 Present : naimudoin & fakhkuddin H. shaikh, Jj COMMISSIONER OF INCOME-TAX (CENTRAL), Karachi—Petitioner versus M/s. NEW JUBILEE INSURANCE COMPANY, Ltd.—Respondent Income-tax Reference No. 22 of 1972, decided on 24-2-1982. (I) Income-tax Act (XI of 1922)- —— S. 5 (8)—Central Board of Revenue—Orders, instructions and directions of—Binding nature of— Held : Orders, instructions and directions of the Central Board of Revenue to be followed by Income-tax Officer but same if not based or not rest for their validity on some provision of Act or Rules framed thereunder, not to bind assess tc. [P. I17JD "Law and Practice of Income-tax" by Kanga and Palkhmala, 4tb Edn. <I958)—P. 883 «/. (II) Income-tax Act (XI of 1922)- —S. 59(4) & (5)—Central Board of Revenue—Framing of Rules by—Publication in official gaze'ie—Necessity of—Held: Considera­tions for frarring valid rules by Central Board of Revenue to be their previous publication in official gazette. [P. 1I7]£ PLD 1961 SC 105 & PLD 1965 SC 412 ref. (til) Income-tax Act (XI of 1922)— —- S. 10(7) & 1st Schedule—R. 6—Insurance business—Profits an«J - gains of—Expenditure—Meai ing of— Hild: Part of pumium set aside for unexpired risks to be brought cack as income after expiry of risks and meeting out loss arising out of uncxpired risks and -not to be treated as "expenditure". [P. I li]C Income Tax Act (XI of 1922)— -- S. 10 & Rule 6 of 1st Schedule read with Insurance Act (IV of 1938)— S. 15 (I)— Insurance business— Profm and gains of— Balance of profits — Acceptance of by Income-Tax Officer — Held: Income- Tax Officer to be bound to accept balance of profits 'as disclosed by accounts submitted by asscssee to and accepted by Collector of Jnusrancc under S. 15(1) o.f Insurance Act 1938 except that Income- Tax Officer to be emHed to exclude expenditure other than expen- . diiure permissible under provisions of S. 10 of Income-Tax Act and amount set asid; as reserves for unexpired risks not to be expenditure within meaning of rule 6 of First Schedule and Section 10 of Income- Tax Act. [P. 118JF (v) Words and Phrases— -- "Expenditure"— Meaning of— Income-Tax Act (XI of 1922)— S. 10 and 1st Schedule— R. 6. (P. \4\A (1959) 37 1TR 66 & 19SO PTD 73 ref, (vi) Words & Phrases— - "Reserve"— Meaning of. {Pp. 114dI15|5 PLD Iv60 SC (Pak.) 48 : (1955) 27 ITR 530 and Ballentine'a La Oiciionery ref, Mr. Haider All Pirzada, Advocate for Appellant. Mr. All Atliar, Advocate for Respondent. Date of hearing : 4-2-1982. judgment Nairaoddin, J.— By this reference which relates to the assessment years 1963-64 and J 964-65, the following question of law has been referred to us, under Section 66 (I) of the Income Tax Act. 1922. at the instance of the Commissioner of Income Tax (Central) Karachi, the applicant : — "Whether on the facts and circumstances of the case the reserves for unexpired risks in fire and marine accounts were liable under Rule 6 of the First Schedule read with Section !0 of the Act as expenditure." The facts giving rise to this question are that the resp0ndeni/assessee is an Insurance Company incorporated in Pakistan and carries on life and other insurance business in Pakistan. The respondent Claimed reserves for uncxpired risks in fire and marine accounts to the extent of

50 percent and 61) percent respectively of the to'.al premia received on account of thjsc risk«. The Income-tax Officer held that the amounts so reserved were excessive and restricted the same to 40 percent of the amount of premia us in his opinion the respondent was .unable lo make out any case for claiming higher resenes as it was not shown that greater risks were involved in any of the years under assessment. The respondent filed a direct appeal to the Income Tax Appellate Tribunal. K irachi B inch. Karachi but conceded before it that no evidence was a/nlaoie 10 evanish thi circu nuances for claiming higher reserves, However, ittj rc.pj.iJiat placed reliance on the earlier decision of (be Tribunalin i.T.A. No. 2358 of 1966-67, decided on 19-10-1968, wherein the Tribunal, by majority opinion, ruled that the entire claim for the reserves' was ou'tside the ambit of scrutiny by the Income-tax Officer at the reserves for unexpired risks could not be treated as expenditure within (he meaning of rule 6 of the First Schedule to the Act. Therefore, the tribunal deleted the additions made by the Income Tax Officer. The applicant required the Income-tax Appellate Tribunal to refer tha following questions of law, besides another question, said to arise from their order in t.T.A. No. 2412 of I96& and I.T.A. No. 2413 of 1969 decided on 5-6-1970, However, the Tribunal framed'only one question mentioned herein above. "Whether on the facts and in the circumstances of the case the reserve for unexpired risks in Fire account of Rs. 1,58,550 not being an actual expenditure but hypothetical estimate of liabilities is allowable under Seciion 10 read with Rule 6 of the First Schedule of the Income Tax Act." "Whether on the facts and in the circumstances of the case the Income Tax Officer has no jurisdiction to disallow a part of the reserve for unexpired risks of Rs. 1.58,550 in Fire Revenue Account as inadmissible under Rule 6(1) of the First Schedule read with Sec­ tion 10 inspite of such reserves being contingent liability and hypothetical estimate of undermined and uncertain liability and no evidence have been produced for excessive risks involved by the assessee.'' "Whether on the facts and in the circumstances of the case the reserve for unexpired risks in Marine Revenue account of Rs. 2,60,392 not being an actual expenditure but hypothetical estimate of liabilities b allowable under Section 10 read with Rule 6 of the First Schedule of the Income Tax Act." "Whether on the facts and in the circumstances of the case the Income Tax Officer has no jurisdiction to disallow a part of the reserve for unexpired risks of Rs 2,60,392 in Marine Revenue Account as inadmissible under rule 6(1) of the First Schedule read with Sec­ tion 10 inspite of such reserves being contingent liability and hypothstical estimate of undermined and uncertain liability and no evidence having been produced for excessive risks involved by the assessee." We have heard Mr. Haider Ali Pirzada Advocate for the applicant and Mr. Ali Athar Advocate for the respondent. In order to answer the question we may first here quote the relevant provisions of Section 10(7) of the Income Tax Act, rule 6 of the First Schedule to the Act and Circular No. 21 of 1941, issued by the Centra) Board of Revenue on which reliance was placed by the Income-tax Officer and also by the learned counsel for the applicant. Section 10(7) of the Income Tax Act, 1922 reads as follows :•— "10.—(1) Subject to the provisions of this Act. the tax shall be payable by an assessee under the head Profits and gains of business, pro­ fession or vocation in respect of the profits or gains of any.business, profession or vocation carried on by him. (2) .... (4) ..... (5) ...... (6) ....... (7) Notwithstanding any tiling to the contrary contained in Sec­ tions 8, 9, 10, 12 or IS, the profits and gains of any business of insurance and the tax payable thereon shall be compu'.edm accordance with the rules contained in the First Schedule to this Act.' Rule 6 provides : •'6. — (I) The profits and gains oi any business of insurance other than life insurance shall be taken to be the 1 balance of the profits discloftd by the annual accounts, copies of which are required under Hie Insurance Act, 1938, Vo be furnished to ihc Controller of Insurance after adjusting such balance so as to exclude from it any expen­ diture, other than expenditure "which may under the provisions " of Section 10 of this Act be allowed for in computing the profits and gains of a business ......................... ". The relevant part of the Circular on the basis of which it was held by the locome Tax Officer that the respondent has failed to prove that in providing higher percentage of the amount of premia reserve, greater risks were involved in any of the years under assessments, which appears at Page 264 of the Income Tax Manual. Part II. 1968 Edition, reads as follows : — "Normally a reserve equal to 40 percent of the premium income of the expiring year is sufficient provision against all un expired risks, but if, in any case, it claimed that on account of the greater risks involved in a particular type of policies, the normal allowance is not sufficient, an aggregate allowance upto, but not in any case exceeding 50 percent of the premium income may be allowed." Having quoted the relevant provisions, we may first, in order to answer the question as framed, consider the point, 'whether setting aside a certain percentage of the premium income from fire or marine insurance against all unexpired risks is an expenditure within the meaning of Section 10(2) of the Income Tax Act. The word 'expenditure is not defined in the Income- Tax Act, 1922, but it has been considered judicially in a number of cases. We may here refer to Indian Molasses Co. (Private) Lid. v. Commissioner of Income-Tax. West Bengal (1959) 37 l.T.R. 66, wherein the Supreme Court of India observed that "spending" in .the sense of "paying out or away" of money is the primary meaning of "expenditure." "Expenditure" it thus what is "paid out or away" and is something which is gone irretriev­ ably. This meaning has been followed by a Division Bench of this Court in the Eastern Federal Union Insurance Co. Ltd. v. Commissioner of Income- Tax (Central) (1980 P T D 73). The next poiai that requires consideration to answer the question under reference is what is meant by the word "reserves." This word came up for consideration before the Supreme Court of Pakistan in the Commissioner of Income-Tax. North Zone, West Pakistan v. The Lyallpur Cotton jMills Ltd., Lyallpur [P L D I960 S.C. (Pak) 48], with reference to its use "in Schedule H Rule 2(1) of the Business Profits Tax Act. It was held therein by Amiruddin Ahmad, J. who delivered the opinion of the Court tha the word "reserves" should be given its plain and dictionary meaning., I.e. there must be some setting apart of the amount for some special or genera! purpose. This was also the meaning assigned to this word by the Dacca High Court in R Sim &. Company Limited v. Commissioner of Income-Tax. East Bengal, Dacca [(1955) 27 J.T.R. 530J. According to Salientine's Law Dictionary, Third Edition, Page 1101. 'Reserve means. "Verb : To appropriate to a particular purpose. To exclude. To sei aside. To set apart from that which has been granted. To make a reservation." "Noun : In insurance, a sum of money variously computed or estimated, which, with accretions from interest, is set aside, as a fund with which to mature or liquidate, either by payment or reinsurance with other companies, future unaccrued and contingent claims, and claims accrued bui contingent and indefinite as to amount or time of payment." In view of the meaning of the words "Expenditure" and "reserves judicially explained, it cannot be said that a portion of the amount of prcmia kept in reserves for unexpired risks in fire and marine accounts could be treated as expenditure, for. as already noticed "expenditure" is what'' is paid out or away or disbursed and is some thing which is gone irrtrievably It is not disputed and cannot be disputed that that part of premium which is set aside for unexpired risks, is brought back as income after the expiry of the risks and meeting out of loss, if any. arising out of unexpired risks. We would have rested our answer to the question there but we find from the four questions referred to by the Commissioner of Income-Tax and quoted herein before and the questions referred to us in the connected references made by the applicant for subsequent years, that the proper question which arises out of the order is 'whether in the facts and circum­ stances of ihe case the Tribunal was justified in holding that the entire claim for the reserves was out side the ambit of scrutiny by the Income-Tax Officer as the unexpired risks could not be treated as expenditure within the meaning of rule 6 of the First Schedule to the Income-Tax.' The first point for consideration to answer this question is of the powers of the Income-tax Officer to question the setting aside of a portion of premium by {be assessee as reserves for unexpired risks. Somewhat a similar question but in different form came up for consi­ deration before this Court in ihe Eastern Federal Union Insurance. Company Lid. v. Commissioner of Income-lax (Supra). The question was : "Whether in the facts and circumstances of this case, the Tribunal was justified in holding thai the reserve for unexpirea risk in Fire, Marine and Miscellaneous Accounts could be reduced "to 40% from 50% of the premium income as provided for in the account submitted to ihe Controller of Insurance ?" In that case the quesiion was answered in the negative, for, in that case the Tribunal had held Urn the reserves for unexpired risks in fire, marine, and miscellaneous accounts, could be reduced by the Income-Tux Ollfccr to 40 p;r cent from 50 percent of the premium income as provided for in the amounts submiued to the Controller of Insurance. Reliance was placed on two dejisions or' Supreme Court of India in (1) Pavan Insurance Company Lid. v. Commissioner of Income-Tax (Madras) [(1965 55 1TR 716=l% < P.T D. 475], and (2) Commissioner of Income-tax. West Benzol v. Calcutta Hospital — Nursing House Benejiis Association Ltd. (AIR (1965) SC (India) 1902 & 1967 P.T.D. 176]. In ihe last named case it was observed in paragraph 18 of the judgment as follows : — "(18) Examiring R. 6 in the light of (his background, it seem t» us that the intention of the rule is that the balance of profits as disclosed by 'he accounts submitted to the Superintendent of Insurance and accepted by him would be binding on the Income-Tax Officer, except that the Income Tax Officer would be entitled to exclude expenditure oiher than expenditure permissible under the provisions of S. 10 of thcAcl". It may be noted that in that case the Tribunal had taken a view contrary to the view taken in the present case. The reasons given by this Court for the answer to the above men­ tioned question in 1980 P.T.D. 73 can also be given for answer to the question framed by us for no additional arguments were advanced on behalf of the applicant expcept one. which we will immediately notice. In thai case reliance was placed before the Division Bench on the Circular, relevant portion v» hereof we have already quoted, in support of the argument' that the Income-tax Officer under that Circular was bound to allow only 40 per cent of the amount of preminra for unexpired risks unless it was proved that unexpired risk was greater. It was submit 1 cd before us by Mr. Haider Ali Pirzada that the finding of the Income-Tax Officer was that the respondent had failed to make out any .case for claiming higher risks as it was not proved that greater risks were involved in any of the years under assessment and it was further submitted that it was stated before the Tribunal that there was no evidence to establish ihe stand for claiming higher reserves. It was argued by Mr. Haider Ali Pirzada that the instructions contained in Circular were binding on the Income-Tax Officer under Section 5, sub­ section (8) of the Income-Tax Act. 1922, which provides that all officers and persons employed in the execution of the Act shall observe and follow the orders, instructions and directions of the Board of Revenue. He also argued that any directions issued by the Central Board of Revenue have the force of law as under Section 59 of the Act they have the powers to make the rules for carrying out the purposes of the Act. He placed reliance on The Province of West Pakistan through the Secretary, Svcial Welfare and Local Government Department v. C/i, Din Muhammad & Others (PLD 1964 SC 21) and Sh. Masud Ahmad v. Pakistan (PLJ 1976 SC 244) administrative competen as statutory i ulcs. In the second named case it was observed by the Supreme Court that "thii argument is also without any substance. It can scarcely be ror.; iuverted that thelettei is expressed in geneial terms 2-- liuvuig been issued by the appropriate auihori'y namely the President, who it cannot be contro^jrieJ >v ii a r;p >>uory of he rule-nuking p,>wcr regulating ihe teitus and conditions of service of the "listed post holders". .- <°flf T r as the first ar 8 uraent is concerned, it may be stated that Sec­ tion 5 (8) of the Act binds the Income-Tax Officer to follow the orders instructions and directions of the Central Board of Revenue but such orders, instructions and directions cannot bind an assessee, if the same are not based or do not rest for their validity on some provision of the Act or tie Rate framed (hereander. Since it /> not shova ttgf tbt Central Board of Revenue under any provisions of the Act or the Rules framed thereunder could restrict the provision for keeping aside certain portion of premium income for an unexpired risk to 40% or in case of a greater risks to 50% therefore, such restrictions could not have any a tk« a.«-,e.^e.c. Itv. Ca.ct Katv^a avid Palkhvvala \n "u ^ ° Practice o} Income-Tax", 4fb -Effifion. page r-m^r^r desiratalny for making the provisions for allowance in respect of unexpired risks in the statute in the following words :— "It is eminently desirable that provisions for allowance in respect of unexpired risks should be made in the statute itself rather i ban that the matter should be regulated merely'the administr­ ative practice and executive instructions." Accordingly the Indian Legislature in rule 5 (c) in the First Schedule to .he Indian Income-tax Act, 1961 has made provision to the effect that oyer to a reserve for unexpired risks as may be be allowed as a deduction". Taking i p the second arguments that the instructions issued by the Central Board of Revenue have vhe Voice of \av as. Vhey, undet Sccuon 59 of the Act, have powers to make rules, it may be stated that under Section 59 (4) & (5) of the Act the considerations for framing valid rules are their previous publication and publication in the official ^.-izette. It is not shown that these conditions were fulfilled with regard to the instructions coofa/ned in the Circular. We may here refer to Supreme Court decision in Pakistan v. Sheikfi 4bdul Hamid tP.L.D. 1961 S C. 105). In this case it was observed by Cornelius C.J. as follows) ;— "The conclusion appears to us to have been reached altogether too easily. Office instruction, are manifold in their scope and are, designed and expressed to be used as guidance for the conduct ol the affairs of each Department, and no such instructions it is perthat no legal right can be founded. On the other rule has certain visible characteristic which be dispense] wilb, when the question arises of cCai'nn'ng Uptf/T (flC D2S1S Of SUC v^ v^t,. f^ ivsAc «vJAie!i <l& be expressed With to possess generality so as to capable ot , number of "cases. It it leaves scope for discretion, that should be expressly provided for. Ordinarily, it is necessary also that ihe making, and promulgation of a rule should be attended by certain formalities eg. publication in a Government gazette. It is not enough that there is no express rule relating to a point to confer upon any existing office instruction that there may be, the status and validity of a statutory rule." In the two cabes cited by Mr. Haider Ali Pirzada the power for framing rules were not circumscribed by the conditions of their publication. and the publication in the official gazette and therefore, the cases are distinguishable. We may also here refer to the United Nether and Naviga­ tion Co. Ltd. v.The Commissioner of Income-Tax South Zone (West Pakistan) Karachi (PLD 1965 S.C. 412), on which reliance was placed by Mr. Ali Athar, wherein the Supreme Court had ruled while considering the instruc­ tions issued by the Central Board of Revenue for grant of depreciation allowance while computing profits of non-residents, that instructions bad no legal force. From the foregoing we conclude that the Income-lax Officer is bound to accept balance of profits as disclosed by the accounts submitted by an assessee to the Collector of Insurance under Section 15 (1) of the Insurance Act. 1938 and accepted by him. except that the Income-tax Officer is entitled to exclude expenditure other than expenditure premissible under the provisions of Section 10 of the Act and that the amount set aside as reserves for unexpired risks is not "expenditure" within the meaning of Rule 6 of the First Schedule and Section 10 of the Income-Tax Act. We would accordingly answer the question reframed by us in the affirmative. (CAH) Order accordingly

P L J 1983 Karachi 118 P L J 1983 Karachi 118 Present : nasir aslam zahid & salegm akhtar, JJ KOTRI ASSOCIATION OF TRADE & COMMERCE. Kotri— Petitioner versus GOVERNMENT OF SIND, through Secretary, Housing, Town Planning, Local Government & Rural Development, Karachi and Another—Respondents Constitutional Petition No. D-125 of 1981, decided on 3-6-1982. (i) Sind Local .Government Ordinance (XII of 1979)—

S. 60(1)—Tax—Levy of by Union Council—Sanction of Govern­ ment—Necessity of— Held: Sanction of Government to be accorded or obtained before any levy to be effected by any Council— Held further: Sanction being mandatory, no tax to be levied by Counc'l without obtaining same from Government. [Pp. 131 & 132]^ (ii) Sind Local Government Ordinance (XII of 1979)—

S. 60(1)—Levy of Tax—Sanction of Government— Held ; Word "Sanction" used in section to pre-suppose prior act to be ratified, confirmed or sanctioned by sanctioning authority. [P. 133]B (Hi) Sind Local Government Ordinance (XII of 1979)— Ss. 12, 13, 53, 54. 55, 62, 78, 79, 80(2), 89. 91 & 103—Power to control and supervise—Delegation of— Held: Powers of Govern­ ment relating to exercise of control or supervision-over or for giving directions to councils not to be delegated to councils themselves. [P. 133JC (If) Siad Local Government Ordinance (XII of 1979)— -—S. 60(1)—Levy of tax by Union Council—Sanction of Government— Held : Sanction by Government not to be mechanical administrative act to be performed in routine—Held further : Such legislative power to be exercised by sanctioning authority after its satisfaction regarding taxation proposal being in order and council concerned having taken all steps in accordance with prescribed procedure, {P. 135]F&G (v) Sind Local Government Ordinance (XII of 1979)—

S. 60(1)—Power to levy tax—Construction of— Held : Power to levy taxes granted by Section being legislative power and being fiscal provision to be strictly construed—Held further: Sanction of Government beine necessary, oxation proposal of Council if not sanctioned, no (such) tax to be levied. [Pp. 134 & 135] D&E (ti) Sind Local Government Ordinance (XII of 1979)—

S. 60(1)—Taxation proposal—-Sanction of—Government— Power of—Delegation of—Held: Sanctioning authority being re­quired to be separate body distinct from Council whose taxation , proposal requires checking or sanction, delegation by Government of its power of sanction under Section to render negatory provision of "sanction" by separate body. [P. '135 & I 36]J&H (vii) Sind Local Government Ordinance (XII of 1979)—

Ss. 60(1) & 106—Taxation proposal—Sanction of—Power of Government—Delegation of— Held: Intention of legislative in enacting S. 60(1) being that taxation proposal of Council must be examined or checked by independent separate body or person before same becoming tax recoverable from citizens, sanctioning authority must be person or body independent of concerned Council—Held further: Power of sanction conferred on Government to be validly delegated to body or person separate or distinct from Council whose taxation proposal to be sanctioned. [P. 136JA&L (Tiii) Sind Conntii (Imposition of Taxes) Rules, 1979—

Mandatory nature .of- Held : Rules being fiscal and also man­ datory in nature, strict compliance of same to be necessary—Held further : Valuable rights having been conferred upon concerned citizens in case of non compliance of rules, such rights to be adverse!" affec'ed and tax to be struck down. [P. 13&]Q&R • (ix) Sind Councils (Imposition of Taxes) Roles, 1979—

Rr. 4 & 5—Taxation by Councils—Regulation of—Non-compliance of rules—Effect of— Held: Rules being mandatory in nature, noncompliance of same to render taxation proposal ineffective. [P. 138JP (x) Custitnlion of Pakistan, 1973—

Art. 151 and Sind Local Government Ordinance (XII of 1979)— Ss. 60, 6l & 62—Taxes—Restriction on Imposition of— Held Art. 151 of Constitution not to restrict Provincial Legislature to impose restrictions on taxes on movement of goods within Province— Held further: Levy of export tax being not in violation of such constitutional provision same not to be struck down on ground of same being in violalive of Article 151. [P. 140] 7" (Ix) Tax — —— Levy of—Held : In order to subject citizens to tax, all prescribed formaliiies to be fulfilled and in case of default or failure in comply­ ing wiib legal formalities, benefit to go to citizens. [P. 137]7V (xii) Octroi Tax — \ Levy of— Held : Ocuci to be levied and recovered by union councils on import of goods foi consumption, use or sale in local area and where goods imported not for consumption, use or sale in local area, same not to be liable to octroi tax. [P. 139 ]S (xiii) Interpretation of Statutes—

Fiscal statutes—Construction of—Held: Fiscal provisions in­ tended to burden citizens with tax to be strictly construed. [Pp. 137& 138]J/&0 Mix. Khalfd Anwar. RasMd Akhund. GMasuddin Baloch, J. H. Rahlmtoola, Sablhuddin Ahmed, Maroof Alt' Khan, Arif Hussain. Abdul Hamid Khan, Mafifiiddin. S. Nasiruddin, Mohsln-Tuyabally, G. M. Paryani, Iqbal Haider, Muhammad All Shaikh, Zafar Alam Khan. Muhammad Iqbal Saad, and Rasool BuxUnar. Advocates for Petitioners. Mjs. Rasool Bux Unar, Imam All Kazi, S. Hamld AH, Dewan Bashir- Ahmad Khan, Nooruddln Sarki. Khuda Bux Umranl, Shahenshah Hussain, Muhammad Hatlf Khan, Khudai-Hussain and Sayeed A. Shaikh, A. G. Sind for Respondents. Dates of hearing: 22/31-3-1982, 1/5/6/7/8/1 2/13/1 5-4-19S2. judgment Nasir A. Zahld. J.—These constitutional petitions call into question the v'alidiiy of the notification No. OSD/Elect/lG/DP-27/79 dated 3-6-1980 of the Government of Sind (hereinafter referred to as "the impugned Notifi­ cation 1 ) to the extent the Sind Government through the impugned Noti­ fication delegated its power to sanction levy of taxes to the Councils. Then tome of these peiitions challenge the octroi tax,-aad other petitions impugn export tax, levied by different Union Councils/Town Committees/District Councils in Sind. This judgment will dispose of the following 45 constitu­ tional petitions : — Petitions where octroi tax is challenged : No. of Petition Name of petitioner Name of council levying the lax 1. C.p.No. D-I091/SO Allah Warayo Khan 2. C.P. No. D-l 196/30 Shah Murad Sugar Mills Ltd. 3. C.P. No. D-l271/80 Abdul Majid and Another Town Committee Sita Road, Taluka Khairpur Nathan Shah District Dadu. Union Council Jhok Sharif, Taluka Mirpur Baihoro, District Thalia. Matli Town Committee Mehrabpur, District Nawab&bab. o. of Petition Name of Petitioner Name of Council levying the tax 4. C.P. No. D-1637'80 Bashir Ahmad Kam- Town Committee Meh- — hoc and oihers. rabpur. District Nawabsbab . • 5. C.P. No. D-1716/80 Muhammad Usmari Union Council, Bau, and another. Khan Pathan, Hala, District Hyderabad. '

6. C.P. No. D-! 25/81 Kotn Association of Union Council Bbolari, Trade & Industry. District Dadu. 7. C.P. No. D-422/81 Chilya Corrugated Union Councils Chilya Board Mills Ltd & Jhimpir, District Thatta. 8. C.P. No. D-467/Si Bhunero Textile Mills Union Council Bholari, Limited. District Dadu. 9 C.P. No. D-470/81 Sliadman Cotton -do- Mills Limited. ./ 10. C.P. No. D-490/81 Husbain Mills Ltd. -do-

^ II. C.P. No. D-593/81 Central Cotton Mills -do- Limiied. 12. C P No. D-603/81 Globe Textile Mills -do- (O.E.) Limited. 13. C.P. No. D-646/81 National Detergent -do- Limited. : 14. C.P. No. D-663/8J Indus Steel Pipes Ltd. -do- 15. C.P. No. D-745/81 Sutriya Textile Mills -do- Limited. 16. C.P. No. D-1011/8! Haji Muhammad Union Council Ibrahim Yakoob. Hydari, Karachi. T n 17. C.P. No, D-1051/81 Shoukat Ali & Ors. Union Council Ibrahim

Hydri, Karachi. r t 18 ............... 1137/81 Sind Particle Board Union Council, Bholari, Mills Limited. District Dadi>. 19 ,, ,. 1156/81 Smd Alkalis Limited Union Council. Ibrahim ;« - Hydri, Karachi. 20. ,, ,, 279/82 Sapphire Textile Mills Union Council, Bholan, Limited. District Dadu. 21. „ ,, 319/82 Dewan Textile Mills -do- Limited. , Petition 1 , where Export Tax is challenged : ^ - 22. ,, ,, 44/8T Asif Industries Ltd. District Council Shikar- & another. pur. } 23. ,, ,, 144/81 Indus Jute Mills Ltd. District Council, f . Thatta. 122 ffftr. KOTRI ASSOCIATION OF TRADE V. GOVERNMENT OP SIKD P.L.J. (Nasir A. Zaltid, J.) No. of Petition Name of Petitioner Name of Council ' levying the tax 24. C.P. No. 145/81 Anwar Textile Mills District Council, Thatta Limited. 25. ... ., 146/81 Forbes Colloids Ltd. -do- 26 ............... 147/81 Chilya Corrugated •do- Board Mills Limited. 27. „ „ 148/81 Central Cotion Mills -do- Limited. 28 ............... 149/81 Bakhsh Textile Mills -do- Limited. 29. ., ., 150/81 Ahmad Spinning -do- Mills Ltd. 30. ,. ,. 151/81 Hamro/ Industries -do- • Limited. 31. ., ,. 152/81 Gharo Textile Mills -do- Limited. . 32. ., .. 153/81 Ar.noor Textile Mills -doe . Limited. 33. C.P No. D-I65/8I Kotri Association ol Districi Council, , Dadu Trade and Industry 34 ............... 453/81 Sind Fine Textile District Council, Shikar- Mills Ltd. pur. 35 ............... 594/^81 Central Cotion. District Council . Dadu

Mills Lid. 36 ............... 641/81 Bawanv Sugar Mills District Council, Dadu Ltd. 31: ,. „ 647/81 National Detergents District Council, Dadu Lid. 38. ,,. ,. 692/81 IndUb'Steel Pipes Ltd. -do- 39. ., ,. 921/81 Taj Muhammad Disirict Council , Badin 40. ,. „ 1136/81 Sind Particle Board District Council, , Dadu Mills Limited. 41 ................ 48/82 Cosmopolitan Deve- -dolopment Company Ltd. 42 ............... 272/82 Molasses Trading & District Council Badin Export Co. Lid. 43. ,. ti 286/82 Surriya Textile Mills District Council , Dadu Ltd. 44. ,, ., 287/82 Arnin Textile Mills -do- Ltd. 2. Before stating the relevant facts of these petitions, we have con­sidered appropriate to refer hereto those provisions of the Sind Local Government Ordinance, 1979 (hereinafter referred to as "The 1979 Ordi­ nance") and certain Rules, inferpretation or reference of which provisions is involved in our decision on these petitions :— Section 3(6)—"bye-laws" means bye-laws made under this Ordinance. Section 3(15)—"Council" means a corporation, municipal committee, town committee, district council, taluka council or union council, as the case may be. Section 3(49)—"prescribed" means rules made under this Ordinance. Section 3(59)—-'rules" means rules made under this Ordinance. Section 3(70)— 'tax include any toll, rate, cess, fee or other impost leviable under this Ordinance. Section 4 —A council constituted under this Ordinance for any local area shall, unless Government by notification, specifies otherwise, be the successor of the local council or local councils for that area existing immediately before the coming into force of this Ordinance. Section 60(1)—Subject to subsection (2) a council may with .the previous sanction of Government levy, in the prescribed manner all or any of the taxes, rates, lolls and fees mentioned in Schedule V. Provided that where a tax, rale or toll which is levied as a cess,- tax or surcharge by Government such lax, rate or toll shall be more than that levied by Govern­ ment. (2) No Taluka council shall have the power to levy any tax, toll or fee and such council shall be financed in such manner as may be prescribed. (3) AH taxfs, rates, tolls and fees levied by a council shall be notified in the prescribed manner and shall, unless otherwise directed by Government, be subject to previous publication. (4) Where a proposal for the levy of modification of a tax, rate, toll or fee is sanctioned, (the order sanction­ ing such levy or modification) shall specify the date on and from which such tax, rate, or fee or the modifica­ tion shall cogje into force. ("It may be observed hence that the words in bracket in Section 60(4) were substituted and be deemed to have always been so substituted by Section 4 of Sind Ordinance 15 of 1981, made on 23-9-1981 for the word "Government"). Section 61.—Government may frame model tax,, schedules, and where -such schedules have been framed, a council shall be guided by them in levying a tax, rate, toll or fee. Section 62(1)—Government may direct any council, (a) to levy any tax, rate, toll or fee which the council is competent to levy under this Ordinance. to increase or reduce an} rate, tax, extent as may be specified ; loll or fee to such or abolish the levy of any tax, rate, toll or (c) to suspend fee.; (2) If the direction is issued under subsection (1), the Chief Executive of the Council shall notwithstanding anything contained in this Ordinance, give effect to it by issuing a notification in terms of the direction nor later than the date, if any, specified by Government in this behalf. (Sub-section (2) of Section 62 as reproduced above, was substituted by Section 2 of Sind Ordinance 5 of 1981 for the original subsection (2) which read as follows :—- If a direction issued under subsection (1) is not com­plied with, within the specified time, if any. Govern­ ment may make an order giving effect to the direc­ tion"). Section 64(1) Unless otherwise provided all taxes rates, tolls and fees levied under this Ordinance shall be collected in the prescribed manner by the persons authorised for such collection. Provided that where any tax, rate, or toll levied by a council is also levied by Government such tax. rate or toll shall be collected with Government Tax, and the proceeds thereof be credited to the local fund of the council. (2) All arrears of taxes, rates, tolls-and fees and other moneys claimable by a council under this Ordinance shall be recoverable as arrears of land revenue through Government agency or by the council authorized by Government for such recovery through such servants or class of servants of the council as may be prescribed. Section 67 (1) All taxes, rates, tolls, fees, and other charges levied by a councij shall be imposed, assessed, leased, compound­ ed, administered and regulated in such manner and within such period as may be prescribed. (2) Rules framed under the section may, among other matters provide for the obligations of the tax-payer and the duties and powers of the officials and other agen­ cies responsible for 'he assessment and collection of [axes. Section 103(1) Gbvernmsnr nviy make rules to carry out the purposes of ibis Ordinance. (2) In particular ind without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in Schedule VII and all matters incidental, consequential and supplemental thereto. Section 104 (1) A council may, and if required by Government shall, make bye-laws net inconsistent with the rules, to carry out the purposes of this Ordinance. (2) In particular and without prejudice to the generality of the foregoing powers such bye-laws may provide for all or any o/the matters enumerated io Schedule VIII and all matters incidental, consequential and supplemental (hereto. (3) All bye-laws shall be made subject to the condition of previous publication. (4) Bye-laws shall be made .subject to the sanction of Government and Government may sanction the same wiih or without modification. (5) If the council fails to make any bye-laws when required by Government to. do so. Government may frame the bye-laws and publish them in the official Gazette and the bye-laws so published shall be deemed to be byelaws made by ;he council. (6) Government may frame model bye-laws and the councils may adopt ihem or be guided by them. (7) All bye-laws shall he- published in such manner as in the opinion of the authority making them is best suited for information of the residents of the local area concerned. Section 105 (1) All rules and bye-laws made under this Ordinance shall be deemed Io form part of'his C finance. (2) Copies of rules and bye-laws shall be kept available at the inspection and ?alc, pertaining to a council office of ihe council for Section 106(.l)"Government may, by notification delegate any of its powers under ibis Ordinance or the rules to (a council or to any officer under Government or the council as the case may be). (2) A council may by notification delegate any of iis powers to the Mayor or as the case may be. Chairman, or a committee or suh-c^wimittee or any oflkei serving under the council. ' (The words in bracket m subsection (1) of Section 106 were substitu­ ted by Sind Ordinance 4 of 19KO published on 4-2-1980 for the words "any officer subordinate to it."). Section 120(1,) The Sind Local Government Ordinance. 1972, is hereby repealed. (2) Notwithstanding the repeal of the enactment under subsection (1)— (a) everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding eomnuiKVl, person appointed or authorised, jurisdiction or power conferred, licence, certificate or permit grantee (rules or bye-laws made) and order issued under any of the provisions of ihe repealed enactment shall, if not inconsistent with the provisions of this Ordinance, continue in force and, so far as may be, be deemed to have been respeciively done, taken, incurred, com­ menced, appointed, authorized, conferred, granted made or issued under this Ordinance; Ib) all union councils, district councils, town committees, municipal commitees and corporations existing immedi­ ately before the coming into force of this Ordinance shall be deemed to be the councils and the officials or Administrators performing the duties and functions of such councils shall continue to perform such duties and function until newly elected councils assume office in accordance with the provisions of ihis Ordinance ; provided that Government may. in the meantime remove or transfer any such official or Administrator and appoint any other person to be Administrator or official of such council or make any other arrangement for running of the affairs of the Council. (The words in bracket in subsection 2(a) of Section 120 were substituted by Sind Ordinance 4 of 1980 for the words "rule made"). Heading of Part II of Schedule V to the 1979 Ordinance is as follows :- TAXES, RATES, TOLLS AND FEES WHICH MAY BE LEVIED BY A CORPORATION INCLUDING THE METROPOLITAN CORPO­ RATION, MUNICIPAL COMMITTEES AND TOWN COM­ MITTEES." Hems Nos. 3, 4, 5 and 25 of Part II of Schedule V read as follows :— "3 Tax on the import of goods for consumption, use or sale in the local area. 4 Tax on the export of goods from the local area. 5 Tolls on road and bridges and ferries. 25 Any other tax which is levied by the Government. Heading of Part IIF of Schedule V to the 1979 Ordinance ii as follows :— . "TAXES, RATES, TOLLS AND FEES TO BE LEVIED BY DISTRICT COUNCJLS AND UNION COUNCILS." Items Nos. 5, 6, 13 and 27 of Part III of Schedule V read as follows :— "5. Tax on the import of goods for consumption, use or sale in the local area (by union council only). 6. Toll as the export of goods to be called Rawangi Mehsool by District Councils only, and may be shared by the District Council with such councils of the District and in such ratio as and when directed by Government, 7. Any other lax which is levied by the Government". (It may be observed here that originally item No. 6 read as follows :— "6. Tax on export of goods from the local area. By Sind Ordinance IS of 1981 this original item No. 6 was substituted by the entry reproduced earlier)". Through Notification No. OSD/(E)/LG/125/80 published in the Sind Government Gazette Part 1V-A ol 18-6-1980, the following Rules were made by the Sind Government in exercise of the powers conferred by Section 103 of the 1979 Ordinance :— The Sind Councils (Imposition of Taxes), Roles 1979. 1. (1) These rules may be called the Sind Councils (Imposition of Taxes) Rules, 1979. (2) They shall come into torce at once. 2. (a) "Inhabitant" means any persons ordinarily residing or carrying on business of owning or occupying immoveable property in the local area, and includes a person who is likely to beaffected by a taxation proposal ; (b) "Ordinance" means the Sind Local Government Ordinance, 1979 ; (c) "report" means the report of the sub-committee prepared under sub-rule (4) of rule 5 ; (d) "Section" meuns a section of the Ordinance ; (e) "sub-committee" means a sub-committee appointed under subrule (2) of rule 5 : ( /) "taxation proposal" means a proposal framed by a council for the imposition, abolition or suspension of tax or an increase or reduction in the rate of tax. 3. A council may at any time review its financial position and if its opinion any change in the .tax structure is called for it shall ormulate or cause to be formulated a taxation proposal. Provided that no taxation proposal shall be formulated in respect of tax before the expiry of six months since its imposition, reduction, suspension or abolition. 4. (1) Every taxation-proposal prepared under rule 3 shall be published alongwith a notice in daily newspapers for inviting objections and suggestions thereon within fifteen days of publication of the taxation proposal. (2) The notice under sub-rule (1) (/) may specify— (a) the main feature of the taxation proposal : (b) the class of persons or description of properly or both affected thereby; (c) the amount or rate of lax to be imposed and the previous amount or rate, if any ; (d) additional income likely to be raised by the imposition of the lax or the increase in the tax and the purpose on which this additional income is proposed to be spent ; (e) the loss of income likely to be caused by ihe abolition or suspension of the tax or reduction in the'rate of the tax and the manner in which this short fall in income is prepared to be made up. (/) justification of the taxation proposal ; and (g) any other particulars considered necessary for the information of the public : (//) shall accompany a taxation programme specifying— (a) the date, which shall not bp, earlier than fifteen days from the publication of the notice, by which objeciions or suggestions may be made by the inhabitants ; (6) the date or dates fixed for the hearing of objections and sugges­ tions received under this rule ; (e) the date by which the final taxation proposal shall be sent to Government for sanction. 5. (1) All objeciions and suggestions received under rule 4, shall be entered in a register maintained for the purpose. (2) The Finance Committee of the Council shall bear and examine the objections and suggestions under the Chairmanship of Mayor or Chairman of the Council, as the case may be. (3) On the date or dates fixed for the hearing of objections and suggestions, the committee shall hear the same in public and shall afford all possible facilities to the persons making them to present their case. (4) The committee shall as early as possible after close, of the hearing , of objeciions and suggestions, draw up and furnish detailed report 10 the Council. (5) The report under sub-rule (4) shall specify — (a) the salient features of thetaxation proposal; (/») the number and nature of objections and suggestions received within the specified period ; (c) the manner in which the objections and suggestion were heard ; (d) the findings of the committee in respect of each objection and suggestion heard by it : (e) the recommendations of the sub-committee with regard to the taxation proposal indicating whether the recommendations are. as nearly as possible, in accordance with the model tax schedule, if any, framed by Government under Section 6 ; and (/) financial implications involved in such recommendations. 6. (1) The M lyor or Chairman, as the case may be, shall present the report to the special meeting of the council, convened for con­ sideration of the taxation proposal. (d) additional income likely to be raised by (he imposition of the tax or the increase in the tax and the purpose on which this additional income is proposed to be spent ; (e) the loss of income likely to be caused by the abolition or suspension of the tax or reduction in the '.rate of the tax and the manner in which this short fall in income is prepared to be made up. (/) justification of the taxation proposal ; and (g) any other particulars considered necessary for the information of the public : (//) shall accompany a taxation programme specifying— (o) the date, which shall not b> earlier than fifteen days from the publication of the notice, by which objections or suggestions may be made by the inhabitants ; (b) the date or dates fixed for the hearing of objections and sugges­ tions received under this rule ; (c) the date by which the final taxation proposal shall be sent to Government for sanction. 5. (I) All objections and suggestions received under rule 4, shall be entered in a register maintained for the purpose. (2) The Finance Committee of the Council shall bear and examine the objections and suggestions under the Chairmanship of Mayor or Chairman of the Council, as the case may be. (3) On the date or dates fixed for the hearing of objections and suggestions, the committee shall hear the same in public and shall afford all possible facilities to the persons making them to present their case. (4) The committee shall as early as possible after close of the bearing , of objections and suggestions, draw up and furnish detailed report to the Council. (5) The report under sub-rule (4) shall specify — (a) the salient features of the taxation proposal ; (b) the number and nature of objections and suggestions received within the specified period j (c) the manner in which the objections and suggestion were heard ; (d) the findings of the committee in respect of each objection and suggestion heard by it : (e) the recommendations of the sub-committee with regard to the taxation proposal indicating whether the recommendations are, as nearly as possible, in accordance with the model tax schedule, if any, Daffled °y Government under Section 6 ; and" (/) financial implications involved in such recommendations. . (1) Th6 Miydfflf Ctaiflttirt, as the case may be, stall present the report to the sps:ial meeting of the council, convened for con­ sideration of the taxation proposal. (2) The council shall consider the report and for the reasons in­ corporated in its resolution— (a) approve it with or without modifications : or (b) drop the taxation proposal : (c) if the council approves the taxation proposal, with or without modifications, it shall be submitted to Government alongwnh a copy each of the report of the committee and the resolution approving it. (7) Where Government has sanctioned the taxation proposal the order of Government shall be notified in the Official Gazette and such order shall come into force on and from such date as may be specified in the notification. 3. In these petitions, as observed earlier, levy and recovery of octroi and export tax by the concerned councils has been challenged. In a few cases, there already existed tax schedules on the basis of which taxes were being recovered .md when revised schedules were notified, such revised Schedules came to be challenged. However, in most of these petitions taxes .vhich are impugned were imposed by councils for the first time. We have heard M/s. Khalid Anwar, Rashid A. Akhund, J. H. Rahimtulla, Ghiasuddin Baloch, Sabihuddin Ahmad, Maroof Ali Khan, Arif Hussain, Mohammad Ali Shaikh. Sher Afgan, Abdul Hirn>d Kha'i, Zifar Alam Khari. S. Nasiruddin and Iqbal Haider for the petitioners. On behalf of the respondents the main arguments were addressed by Mr. Rasul Bakbsb (Jnar and Mr. Saeed A. Shaikh, the learned Advocate-General of Sind. We have aiso heard M/s Khuda bujc Omrani, Imam Ali Kazi, Hatif Kbudai Ansari, Shahenshah Hussain and S S. Hamid for the respondems. We may first refer to ihe two tnaiu contentions raised on behalf of the petitioners. First such contention was that levy of tax by a council under Section 60(1) of 1979 Ordinance is subject to previous sanction of the Government, levy of tax by the various councils is bad. It may be mentioned here that it has been an admitted position that the Government did not accord any -.anction but the case of the respondents is that under Sec­ tion 106 of the 1979 Ordinance, Government is invested with the power to delegate through notification any of its powers under this Ordinance to any council and that by noiification No. OSD/Elect./LG/DP-27/79. dated 3-6-1980, Government's power to sanction levy of taxes was delegated to all the councils. We may 'here reproduces the Notification dated 3-6-1980. :— Notification No. OSD/Elect/LG/DP-27/79 :—In exercise of the powers conferred by subsection (1) of Section 106 of the Sind Local Government Ordinance, 1979, the Government of Siud are pleased to delegate its powers under the Sections of the said Ordinance mentioned in column I of the table below tr» all the Councils in ihe mam?r and extent indicated in column 2 thereof:— Table Section No. & its description I Extent and manner of delegation. 2 60 (1) The power to sanction levy of taxes. Full powers ; provided that — (/) it does not involve reduction in the existing rates ; (/;') the abolition of an existing tax ; (/'//) prior approval of Government would be necessary where im­ position of tax has bearing on export of agricultural inputs. Petitioners' contention has been that the power of sanction could not be delegated to the Union Council whose action was itself subject to sanction. The second main point that has been agitated in these petitions has been that the prescribed procedure has not been followed by the councils which renders the levy of taxes invalid. These two contentions are relevant for petitions where octroi tax is challenged as well as petitions where export tax has been challenged. We may also mention here that in respect of export tax cases, another major argument raised was that levy of export tax by the councils was un-constitutional being in violation of Article 151 of the 1973 Constitution. 4. We first take up for our consideration the contention relating to delegation of the power to sanction the taxes through the impugned Noti­ fication dated 3-6-1980. Mr. Khalid Anwar, appearing on behalf of the petitioners in several of these petitions advanced the following submissions in this regard :— (/) Sanction of the Government is mandatory under Section 60 of the 1979 Ordinance ; (//) Section 6.0 requires prior sanction and not ex-post facto sanction ; (///) "Sanction" pre-supposes a prior act which is then ratified by the sanctioning authority ; (iV)"previous sanction" postulates two separate and distinct bodies ; (v) Impugned Notification dated 3-6-1980 renders Section 60 (1) of the 1979 Ordinance nugatory ; (vl) Impugned Notification purports to alter the fundamental scheme of the 1979 Ordinance relating to levy of taxes by the councils ; (r/7) The 1979 Ordinance and the Rules made thereunder require exa­ mination by the Government of the taxation proposal made by . every Council and the blanket sanction in advance through the impugned Notification is not sanction io the eye of law ; rding—Ser­ vice of notice by post—Rebuttal of prcsumjtion—Tenant denying on oath service of notice on him and correctness of endorsement of postal autho­ rities on envelope— Held: Presumption of service of notice having been sufficiently rebutted, posiman making endorsement of "refusal" on postal envelope to be required to be examined to prove service. {P. 90J A (viii) "Sanction" provision in Section 60(1) is 10 ibe nature of a "Res­ ponsibility" of the Government and under Jaw responsibilities conferred on a body cannot be delegated as has been unlawfully done by the Government through the impugned Notification. 'According to learned counsel, it is a case of "abdication of res­ ponsibilities' ; fix) Impugned Notification delegates power !o all councils and this. according to learned Counsel, was invalid. It was contended that under this Notification it has been made possible for one council to sanction the taxation proposal of any other council also which was not only absurd but contrary to the taxation scheme of the 1979 Ordinance. Counsel appearing for other petitioners adopted the above conten­ tions of Mr. Khalid Anwar and then advanced additional argu­ ments on the question of the vires of the impugned Notification dated 3-6-1980. tx) Mr. Rasbid Akhund submitted that the impugned Notification, to the extent it delegated the power of sanction to the councils, was invalid on account of being a case of excessive and impressive delegtation , (ki) According to Mr J. H. Rahimtoola Section 106 came under Chap­ ter XV of the 1979 Ordinance which relates to "Miscellaneous" provisions, and, therefore, power under Section 107, a miscella­ neous provision couid no 1 , be exercised to override substantive provisions of Section 60 ; (xll) It was also contended by Mr. J. H. Rahimtoola that the power of sanction in Section 60 (1) is a legislative power and for delegation, such power requires specific provision of delegation and genera! provision of delegation cannot be resorted for the purpose of dele­ gation of such a power. It was further submitted that even if the power under Section 60 (!) is an executive power, it being com­ bined with a duty, such power could not be delegated. (xlli) Mr. S. Nasiruddin argued thai the power of previous sanction could not be delegated to the councils. It was contended that "sanelion" required "satisfaction" of the sanctioning authority and "sanction" was not a mechanical act. 5. We now propose to consider the several contentions raised in para 4 of this judgment by learned counsel for the petitioners on the question of the vires of the impugned Notification dated 3-6-1980. While considering these contentions we will no doubt refer to the submissions made on behalf of the respondents in support of the validity of the impu­ gned Notification. 6. A plain reading of Section 60 (1) of the 1979 Ordinance shows that a council can levy the taxes mentioned in Schedule V to the 1979 Ordinance in the prescribed manner but subject, to the previous sanction of the Govern­ ment ft. therefore, follows that before any levy could be effected by any council, sanction of the Government must be accorded or obtained. It has not been the case of the respondents that without sanctian, as -required by Section 60 (1), a council could levy any taxes. We are, therefore, of the view that sanction as required by Section 60 (1) is mandatory and without such sanction no tax can be levied by any council. It is also apparent from the words employed by the legislature in Section 60 (1) that this sanction of the Government must be given or obtained prior to the levy of the taxes by the councils. The words used are "previous sanction of the Govern­ ment". The Legislature has, by employing these words, made its intention clear that the sanction has to be "previous sanction", that is, prior to the levy of taxes and not ex-post facto sanction. The third submission of Mr. Khalid Anwar, learned counsel for the petitioner, was that the word 'sanction" used in Section 60 (1) of the 1979 Ordinance pre-supposes a prior act, which is then ratified or confirmed or sanctioned by the sanctioning authority. We agree with this interpretation. This interpretation finds suppor from the Sind Councils (Imposition of Taxes) Rules, 1979, in which the procedure is prescribed regarding the different stages before a taxation proposal prepared by a council is transformed into a tax. Later in this judgment, we propose to deal in detail with the Rules of 1979, but at this stage suffice it is to observe that Rules 3, 4, 5 and 6 of these Rules, prescribe the various acts to be performed by the council proposing to effect a levy and then Rules 6 and 7 relate to the submission of the final taxation pro­ posal to the Government and the sanction of the taxation proposal by the Government. 7. The next submission on behalf of the petitioners that "previous sanction" in Section 60 (!) pustulates iwo separate and distinct bodies is connected wish submissions No. (v), (v/) and (yii) advanced by Mr. Khalid Anwar and referred in paragraph 4 of this judgment. On this point detailed arguments were addressed not only on behalf of the peiitioners but in reply also by the learned Advocate-General, Mr Rasooi Bux Unar and other counsel, who appeared on behalf of the respondents. On behalf of the peiitioners it was contended thai sanction under Section 60 (1) requires confirmation or ratification of the taxation proposals of the Council and if this power of sanction of the Government was delegated to the council itself, it would not only render Section 60 (I) of the 1979 Ordinance nuga­ tory but it would also alter the fundamental Scheme of the 1979 Ordinance relating to levy of taxes by ihe councils. It was contended that if the acts of the council were subject to sanction by another body and if tinder Section 106 of the 1979 Ordinance, tbi? power of sanction delegated to the council itself, the provision in Section 60 (1) regarding sanction would become redundant, as confirmation or ratification or sanction by a body of its own acts means nothing, as a bod , which has taken a decision, is bound to confirm or sanction its own decision. It is in this context that it was argued pn behalf of the petitioners that the power of sanction could not be delegated to the body whose own action was subject to sanction. 8. It was contended by Mr. Rasooi Bux Unar, learned counsel for the resp;incle.n's, thai there was no embargo in Seciion 106 as regards the power of delegation and as such the power of sanction in Section 60 could be delegated. It was contended by the learned Advocate-General that if the argument was thai power of sanction of the Government under Section 6 > (1) could not be delegated, the Court would be reading a limitation oh the pjwifs of delegation conferred on the Government under Section 106 and as there was no such limitation on the powers of Government under Section 105, this limitation or embargo could not be read into Section 106. In oar view the crucial pjint for determination in the instant cases is as not wheiher the power of sanction could at all be delegated but whether such power coufd be delegated to the very councils whose actions or taxation proposals were subject to previous sanction under Section 60 (1) We pointed out to Mr. Rasool Bux Unar, learned counsel for the res- Dondents, Sections 12, 13, 53, 54, 55, 62, 78. 79, 80'(2). 89. 91 and 103 of '.be 1979 Ordinance, and Mr. Rasoo! Bux Unar very frankly conceded that powers conferred by these Sections of the 1979 Ordinance could not be Delegated to the councils. Section 12 confers power on the Government o divide a council into two or more councils or amalgamate two or more councils. Section 13 gives power to the Government to extend or alter the area of a council. Section 53 provides for the exercise of general supervision and control over (he Councils. Under Section 54, the Govern­ ment is empowered to give directions to any council. An Inspecting OfnYei or Inspection Team appointed by the Government is required to inspect the working of the Councih at least once in a financial year under Section 55. Section 62 provides for directions to Councils with regard to levy of taxes. Constitution of the Sind Councils Unified Grades is provided by Seciion 78. Section 79 caters for the establishment and maintenance of Pension, Bene­ volent and Provident Fund by the Government for the persons belonging to the Sind Council Unified Grades, Section 80 (2) empowers the Govern­ ment to give a direction to any Council requiring the council to reduce the number of posts or remuneration fixed for any post in the schedule of establishment prepared by the council if in the opinion of the Government she number of posts or remuneration for any post is excessive. Section 89 deals with setting up of Divisional and District Co-ordination Committees. Section '9! makes provision for resolution of disputes between Councils. Section 103 grams power to '.he Government to make rules to carry out the purposes of the 1979 Ordinance. It was admitted by the learned counsel that the power of supervision or control over the councils could not be delegated to these councils. It was further admitted that if the opinion of the Government was involved or required to be given, such power could not be delegated by the Government It was, however, contended that in so far as ihe word "sanction" in Seciion 60 (1) was concerned neither thiscould be equated with the power of supervision or control over the councils nor did it require ihe opinion of ihc Government and as such the power of sanction could be delegated to the councils. It was fur'hcr coniended that sanction was an administrative act without -any san'sfaction on the part of (he Government, although it was contended ihat sanction could not be treated as a mechanical act and if the the power had not been delegated to the council and it was still vested in the Govern­ ment, under Seciion 60 (I), the Government as sanctioning authority, could modify the taxation proposal and the modi'ied proposal after, s'anction and <>n publication would become a levy. 9 The learned Advocate-General had argued that Section 106 was an enabling provision, which enabled the Government to delegate any of its powers; the Goveinmeni was given the choice of the delegate ; sanction under Seciion 60 (1) of the Ordinance wss an admir.isirative a«t and could not be arbitrarily withheld by ihe Government and could also be delegated to a council. According to the learned Advocate-Genera! the impugned notification dated 3-6-1980 was issued pursuant to Section 106, which gives clear and unambiguous powers to the Government to delegate any of its . powers under the S979 Ordinance to any council also and that there is no limitation on the powers cf the Government to delegate any of its powers under the 1979 Ordinance ; that what the petitioners were contending was that Section 60 (h was an exception in so far as the powers of delegation under S?ctio,i 106 were concerned, \shereas according to the learned Advoca'e-Gcnera! this was not so as while enacting Section 106, she Legislature was aware of Sec'ion 60 but in spite of this no limitation was placed under Section 106 on the powers of the Government in so far as the delegation was concerned. It was further conteded that sanction under Section 60 (!) amounted to consent and was not akin to supervision or control of the actions of she counicils. Being a power of consent in the nature of an administrative act, it was contended that this power of consent or sanc­ tion could be delegated to the authority, whose sections required consent or sanction under Section 60 (1). JO. The bare argument that as ho limitation is expressed in Section 106 (!) of the 1979 Ordinance, every power vested in the Government under the Ordinance can be delegated to the bodies and persons specified in Section 106 (I) has not impressed us. If it were so, even the powers conferred by Sections 12, 13, 53, 54, 55, 62, 78, 79, 80 (2). 89, 91 and 103 upon the Government could have been validly delegated to the council. As observed earlier. Mr. Rasool Bakhsh Unar for the respondent!; conceded that powers of the Government under the aforesaid Sections cannot be delegated to the council'. We are' also of the view that powers o r the Government under the aforesaid Sections of the 1979 Ordinance cannot be delegated in 'he councils in view of the nature of the said powers Under the aforesaid ^cctions, the powers of the Government relate to the exercise of control or supervision over or for giving directions to the councils. It is obvious that ,Jsuch powers of control or supervision, over or direction to the councils cannot ( be delegated to the councils themselves. Now in Section 106 there is no limitation expressed about the powers of delegation. Nonetheless the legal position is that powers of the Government under Sections 12. 13, 53, 54, 55, 62. 78, 79. 80(2), 89. 91 and 103 cannot be delegated to the councils al'hough councils are mentioned in Section 60 (I) as bodies to whom powers of Government can be delegated. The legal position is so in view of ihe nature of powers mentioned in the aforesaid sections, as observ-ed earlier. I.I. The question whether the Government's power of sanction under Section 60 (1) of the 1979 Ordinance can at ail be delegated to the Councils cinut. therefore, be decided by reference to section- 106 alone. What is pertinent is the nature of power conferred by the Legislature on the Govern­ ment through Section 60 (I) and once an analysis of this power has been made, it can then be determined whether such power can be delegated to the councils. Section 60 (!) of the 1979 Ordinance gives to the councils the p )Wjr to levy t;i\e5 mentioned in Schedule V of the 1979 Ordinance but the p > y.t i-; su ~>\ ::i 'o the previous sanction of the Government We have already observed that there c.snnot be a levy w ihou; the sanction. An argument had been raised on bshilf of the respondents that "sanction" here is an aJmrnistraiive act and cannot be arbitrarily wirhheld by the 'G)vernment. Power to levy taxes granted by Section 60(1) is a legislative poiver and being a fiscal provision it has to ba strictly construed. As D sanction is necessary, if in a given case the taxation proposal of a council is Inot sanctioned, there will not bs a levy. There is no prevision in the 1979 JO/Jin a-ice that in case the sanction is not accorded within a certain period the taxition proposal of the council will become a tax recoverable from the co icern^d citizens. Reference may be made to Articles 75 and 116 of the 197J' C > ntitu:io i wVch provides for the assent of bills by the President and the G jvernor. But in these Articles of the 1973 Constitution it is provides that in case the assent is not given w.tbin seven days the bill presented for assent shall be deemed to be assented and shall become law. No such deeming provision about the sanction is to be found in the 1979 Ordinance about the levy of taxes. Ii may, therefore, again be observed that without sanction there cannot be a levy under Section 60 (1). This finds support from Section 60 (4) which lays down thai order of sanc­ tion shall specify the date from which the tax in question shall come into force. 12. By Section 60 (I) extensive powers have been conferred upon all the councils in the Province of Sind in connection with the levy of taxes. By incorporating the provision about the previous sanction "of the Government, the Legislature, in its wisdom placed a check on these powers. The power or sanction in Seciion 60(1) is a substantive power. It is not a mechanical act or a mere administrative act to be performed in routine without tatisfaction of the sanctioning authority that the taxation proposal of (he council has gone through the {prescribed procedure and that the final axation proposal otherwise also is in accord with the letter and spirit of the taxation provisions of the 1979 Ordinance. The sanctioning authority may .not agree with the proposal taxation rales and in case it does not accord sanction tax cannot be levied. In our view "sanction" here is not a mechanical minisirative act. It is a legislative power to be exercised by the sanctioning authority after it is satisfied thai the| taxation proposal is in order and (he council concerned has taken all. steps in accordance with the prescribed procedure. The sanctioning authority may be of the opinion that the rates of certain taxes are high or cer'tain items should not be subject to tax or that (he rates proposed ay bring in more money than required by the councij or thai (he (axes may put a heavy burden on the citizens or that the rates proposed do not compare favourably with rates proposed by other councils and for any one more of such factors it may not accord sanction. We are further! of the view'.hat the sanctioning authority must, in tbe circumstances, be atj separate body distinct from the council whose taxation prpposal requires) <hecking or sanction. According to us this is the apparent intent of the! Legislature. Impugned Notification dated 9-6-1980 to the extent it pruporiSj" to delegate the powers of sanction under Section 60(1), iherefore. renders' nugatory the provision of "sanction" by a separate body of tbe taxation) proposal of a council. Learned Advocate-General had contended that the power of sanction was equivalent to consent and, therefore, it could be delegated. Even if "sanction" is equated with "consent", our interpolation of Seciion 6C(I) that it postulated two separate bodies would noi be different. If ihe taxation proposal were to require the consent of the sanctioning authority, even then the sanctioning authority has to be a body or person different from the council whose proposal requires consent of the sanctioning authority before the proposal becomes a tax. We may refer to another argument very vehemently convassed by Mr. Rasool Bux Unar on behalf of the respondents. !i was contended that Section 62 of the 1979 Ordinance gave ample powers to the Govern­ ment to give direction to any council to levy, increase, reduce, suspend or abolish any tax, and this section renders the sanctioning power under Sec­tion 60(1) to the position of a mere administrative act capable oJ being delegated to the councils. We do not agree. Firstly, we have already held that Section 60(1) contemplates two separate bodies. Secondly, Section 60(1) provides that the citizen shall not be subject to tax unles the sanction is there. Section 62 will come into play after Ihe tax has been levied. Presence of Section 62 does not dispense with the require­ ment of obtaining sanction from the sanctioning authority. By delegat­ ing this power to the council, an attempt has been made to do away with the sanctioning provision in the Ordinance and this cannot be done by a ' notification of the Government. Only an amendment ia the law could do this. Government has no power to amend Section 60(1) through a notification. Impugned Notification in effect gives a blanket sanction in advance to ail the taxation proposals of councils which is not permissible by the language of Section 60(1). As pbserved by us earlier in this judgment, sanction in Section 6<XJ) is not an administrative mechanical acton the part of the sanctioning authority. It is an act performed by the sanctioning authority after proper examination of the taxation proposal by a council. As held by us, iris a check on the powers of the councils in the field of taxation. 13. Another contention raised by Mr. Khaiid Anwar w»s that "sanc­ tion" in Section 60(1} is in the nature of a responsibility of the Government and under the law responsibilities cannot be delegated. According to learned counsel, the impugned notification was a case of

abdication of responsibilities. Frankly speaking we have not been im- 1 pressed by this argument. Sanction is a power conferred by Section 60(1) on the Government and this power, in our view, can b« validly delegated, by virtue of Section 106, to a body or person separate or distinct from the council whose taxation proposal are to be sanctioned. For instance this pow-er can be delegated to an officer under the Government but cannot be delegated to an officer under a council whose taxation proposal are to be sanctioned. Sanctioning authority must be a person or body indepen­ dent of the concerned council. The intention of the Legislature, in our w, in exacting Section 60(1) was that the taxation proposal of a council must be examined ur checked byan independent separate body or person before it becomes a lax recoverable from the citizens. 14, Argumenis were addressed at great length by learned counsel appearing for the parties on the point of excessive and impermissive delegation of powers. A large number of reported judgments of the superior f Courts were also cited in this context. We have already expressed our view ou the question of delegation of the power of sanction to the councils which is premised on an interpretation of Section 60{!) itself and the intention of the Legislature in enacting the provision about the previous sanction. In this view of the matter we do not consider it necessary to refer to the arguments relating to excessive and impermissive delegation and the case law cited in respect thereto. The points raised by M/s. . Rahirmolla and S. Nasiruddin have also been directly or indirectly dealt with by us. 15 The nexi main point lhat has arisen for our consideration in these petitioners is the non-compliance of the Rules by councils while taking steps for levying the taxes. Except for a few petitions where it _/ was pleaded that previous rules applied, in all other petitions it was an admitted position that the applicable rules are the Sind Councils (Impositioa of Taxes) Rules, 1979 which have been reproduced earlier in this Ju J;;ra; t 1 .. O,i a quick ghi ice at the said Rules we find that Rule 3 of these Rules provides initially for the formulation of the taxation proposal by a council: Rule 4 requires such taxation proposal to be published in daily newspapers alongwith a notice for inviting objections and suggestions thereon: what is to be specified in such notice is detailed in Rule 4(2) which sub-rule further requires that the notice shffl! accompany a taxation programme specifying the information to be notified in such programme ; Rule 5 makes provision about the hearing of objections and suggestions to the preliminary taxation proposal by the Finance Committee of the Council and for drawing up of a detailed report to the council ; under Rule 6, the report of the Finance Committee is considered by a special meeting of the council which then may approve the report with or without modifica­ tions or it may drop the taxation proposal. In case the council approves the taxation the proposal to the Government alongwith a copy each of the report of the Committee and the resolution approving it ; Rule 7 says that where the Government sanctions a taxation proposal, the order of the Government shall be notified in the Official Gazette and such order shall come into force on and from such date as may be specified in the notification. 16. The Sind Councils (Imposition of" Taxes) Rules, 1979 have been made by the Government of Sind'in exercise of the powers conferred on the Government by Section 103 of 'he 1979 Ordinance. Section 103(1) gives power to the Government to make rules to carry out the purposes of the Ordinance. Section 103(2) specifically refers to matters enumerated in Schedule VII of the 1979 Ordinance. 'Items Nos. 1.9, 20 and 23 of Schedule VII are as follows :— "19. Regulation of the assessment and collection of the local cass. 20. Regulation of the assessment, collection and administration of taxes, rates, tolls and fees, and all matters relating thereto. 23. Any other matter required under any of the provisions of this Ordinance to be prescribed." Now Section 60 (1 J'provides for levy ot the taxes in the prescribed manner. "Prescribed" is defined in Section 3(49) to mean prescribed by rules and rules mean rules made under the 19~9 Ordinance [Section 3 (59)]. Rule making power is vested in the Government and not in the councils by Section 103. Councils can only make by-laws under Section 104. For carrying out the purposes of the 1979 Ordinance, specifically Section 60 thereof, the Goveinment made the ; aforesaid Sind Councils (Imposition <>f Taxes) Rules, 1.979. In the process of levying the taxes, therefore, the councils are, by Saw required to take the steps and comply with the procedure and requirements of the rules made in this behalf. No argument was raised that the aforesaid Rules of 1979 are ultra vires of the 1979 Ordinance It can be taken as an admitted position that these 1979 Rules have been made to carry out ihe purposes of the 1979 Ordinance as regards the levy of taxes by '.he councils and we are also of this view Section 60 of the 1979 Ordinance and the 1979 Rules are fiscal provisions and it is a settled principle of law that fiscal provisions are to be strictly construed. If citizens are to be subjected to a tax, then'genera! principlcly of law is thai all the prescribed formalities required to be fulfilled must), he fulfilled and in case there is a default or failure in complying with thef legal formalities, the benefit must goi to the citizens. 17. An argument had been raised on behalf of the respondents that the 1979 Rules are directory in nature. In anv case, it was contended that even if the Said Rules are mandatory, substantial compliance thereof would be sufficient and failure to take such and every step as required by ithe Rules should not render the tax invalid. We have already observed thai 'these are fiscal provisions intended to burden the citizen with taxes, and. (therefore, these are to be strictly construed. Nevertheless the object and purpose of making these Rules of 1979 may be considered. As observed earlier, Rule 4 of the 1979 Rules requires the publication in daily news­papers of the taxation proposal along with a notice specifying the various informations and matters detailed in Ruls 4 (2) (/) together with a taxation programme giving the particulars specified in Rule 4(2)(/i). The main purpose and object of this rule is to bring the taxation proposal and other particulars and informations to the notice of the citizens who are likely to be burdened with the proposed taxes so that they could file objections and/or make suggestions about the proposed taxes. Rule 5 refers to filing of objections and suggestions and hearing of the same in public by the Finance Committee of the council If the taxation proposal and the notice are not published, citizens likely to be affected will not be in a position to determine whether the proposed taxes wii! hit them and whether they would want to file objections or make suggestions. Without making the people aware of the taxation proposal and oiher matters, provision of hearing by rule 5 becomes ineffective. An excellent and democratic pro­ cedure based on principles of natural justice has been prescribed in rules 4 and 5 for finalization of the taxation proposal and in our view these and other rules of 1979 have been made for carrying out the purposes of the 1979 Ordinance relating to taxation by councils. Rules 4 and 5 are additional checks on the arbitrary exercise of powers by the councils in the field of taxation. The purpose and object of these rules show that these are mandatory rules and non-compliance of these rules would render the taxation proposal ineffective. 1979 Rules being fiscal and also mandatory in nasure, strict compliance is necessarily, and where there is noncompliance or only substantial compliance, the tax will be struck down. Valuable rights have been conferred upon the concerned citizens by the 1979 Rules and if these rules are not complied with these rights are adversely affected. 18. The third Question of considerable importance that has been raised in some of these petitions is the constitutionality of the export tax levied by certain councils. Mr. Sabihuddin Ahmad, learned counsel for' the petitioner in Constitutional Petition No. D-48/82, contended thai export tax levied by some councils on the export simpliciter of goods from the limits of these councils tantamounts to a restraint on the free movement of goods and as such it is violative of Article i 51 of the 1973 Constitution, wuich Article for:n> purl of the Provisional Constitution Order, !98I. Article I5i of the 1973 Constitution is reproduced here :— "151.— £1) Sjbj;ct to clause (2), trade, commerce and intercourse throughout Pakistan shall be free. (2) Parliament may by law impose such restrictions on the freedom of tradp, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in the public interest. " . (3) A Provincial Assembly or a Provincial Government shall not have power to :— On the other hand Mr. Khuda Bux Omrani, learned counsel who appeared for the respondents in six petitions regaling to export tax, in reply, relied upon the following judgments :- (iv) PLD 1978 Lah. 387. (v) 1971 S.C. M.R. 237. (vi) 1980 C.L.C. 704. (v/0 PLJ 1981 Lah. 492. In none of she aforesaid judgments is ihere any discussion onr ihe consti­ tutional validity of export tax with reference to Article 151(1) of the 1973 Constitution or identical provision in the Indian Constitution. It is perhaps for the first time that this contention has been raised -with reference to Article 151 of the 1973 Constitution. According to Mr. Sabihuddin, Article 15! (!) makes trade, commerce and intercourse throughout Pakistan free and only Parliament, and not the Provincial Legisla'ure, can impose restrictions in accordance with Article 151 (2) and the Provincial Legislature has power to impose certain restric­ tions under Article 151 (4) but ihat can be done only with ihe consent of the president, Mr. Saeed A. Shaikh, learned Advocate-General Sind. on the other hand contended that a reading of ihe entire Article 151 as also its marginal heading shows that this Article relates to restriction on inter-provincial trade that is trade between provinces and not on intra-provinciai trade that is trade within a province. In our view the learned Advocate General has correctly interpreted Article 151 as a provisional dealing wiih inter-provincial trade. Article 151 (2) imposes a clear restric­ tion on the Provincial Legislature to make any law or take any executive action or impose a tax on inter-provincial trade. This obviously indicates that as regards iaira-provincial irade, Provincial Legislature is competent to impose restrictions or taxes. Article 151(1) read with the other three sub-Articles of Article 151 leads to the conclusion that Article 151 (Ij-doeb not restrict a Provincial Legislature to itnpoie restrictions or taxes on move­ ment of goods within the province. Export tax cannot be struck down on the plea that it viplates Anicle 151 of the 1973 Constitution as in our view it is not violauve of the said constitutional provision. 20. We may record here our decision on the three major questions of law raised yi these Constitutional Petitions ;— (a) The GwernruMt under Section 106 of the 1979 Ordinance could not delegate its power of sanction conferred by Section 60(1) of the said Ordinance to the councils. Impugned Notification dated 3-6-1980 to that extent is invalid and as a consequence all noti­ fications issued by the councils, pursuant to the powers given by the impugned Notification, are also invalid ; (b) The Sind Councils (Imposition of Taxes) Rules, 1979 are mandatory in nature and a violation or non-compliance of ih?se Rules renders the levy of tax, invalid ; (e) Export Tax or Rawangl Mahsool is not violative of Article 151 of the 1973 Constitution. 21. There being no valid sanction as required by Section 60(1) of the (979 Ordinance and for non-compliauce of Rules 4 and 5 of the Sind Councils (Imposition of Taxes) Rules. 1979, we declare iuO taxes imposed by Ihe councils and Impugned in the following constitutional petitions to be without lawful authority and of no legal effect :— Constitutional Petitions Nos. 125/81, 1091/80, 44/81, 1196/80, 422/81, 467/81,470/81,490/81,593/81. 603/81, 646/8!, 663/81, 745/81, !OI!/81 e 1051/81, 1137/81, !S56/81 S 453/SI, 279/82 and 319/S2. . The taxes imposed by the councils asd impugned In the following • constitutional petitions are declared to be without lawful authority and of no legal effect as there was no valid sanction as required by Section 60(1) of the 1979 Ordinance :— Constitutional Petitions Nos. 1637/80, 144/81. 145/81, 146/11, 147/S1, 148/81, 149/81, 150/81. 151/81, 152/81, 153/S1, 165/83,94/81, 641/81, 647/81, 692/81,-921/81, 1136/81, 48/82, 272/82, 286/82, 287/82 and 318/82. In these petitions, according to our view, there bas beeo no violation of the Sind Councils (Imposition of Taxes) Rules, 1979. 22. There are two other petitions, namely, Petitions 1271/80 and 1716/80, where the facts and points of law involved are different. Petition No. 1271/80 impugnes the Notification Mo. il-DLG/79 dafed 15-7-1979 of the Commissioner, Hyderabad, published about 10 months later in the Sind Government Gazette Part 1-A of 10-5-1980 sanctioning the revision of the previous Octroi Schedule of the Town Committee Maili, District Badin. It is an admitted position that the revised schedule could not have come into effect before its publication in the Gazette. Now a look at the impugned notification of Commissioner, Hyderabad Division shows that ii was issued in exercise of powers vested in him under SfiCtion 71 of the Sind Local Government Ordinance, 1972 read with rule 7 of ihe West Pakistan Local Councils (Imposition of Taxes) Rules, 1961 and powers delegated by the Government to the Commissioners through Government's Notification dated 5-1-1977. Although the impugned Noti­ fication shows that it was made on 15-1979, it remained an incomplete document as it was not published in the Sind Gazette. On 25-7-1979, the 1979 Ordinance was enacted and under this Ordinance s the Commissioners no longer remained the sanctioning authorities. Under Section 62(1) of the '> ' 1979 Ordinance, the Government has to accord sanction and we were not shown any notification delegating the powers to the Commissioners. As ihc Notification dated 15-7-1979 of Commissioner, Hyderabad Division bad not come into effect before the enactment of the 1979 Ordinance, it became ineffective on 25-7-1979 and did not stand revived by Section 120 of the 1979 Ordinance. Further the said notification makes a reference to the exercise of powers under Section 71 of she 1972 Ordinance. This 1972 Ordinance stood repealed by the 1979 Ordinance and after 25-7-1979 powers could sot be exercised under the repealed 1972 Ordinance. As a result we declare the impugned Notification dated 15- 7 -!980 as published in the Sind Gazette of 10-5-1980 to be without lawful authority and, of no legal effect and taxe cannot be recovered under the said Notification. 23. Petition No. D-1716/80 challenges ihe imposition of Octroi tax by Union Council Bau Khan Pathan, Taluka Hala, District Hyderabad, through Notification of this Council No. UC-BK/24 (1)/80 published in Sind Government Gazette Part I-A of 29-7-1980. By 29-7-1980, the 1979 Ordinance had already been enacted and the Sind Councils (Imposition of Taxes) Rules 1979 made. It is an admitted position that the procedure prescribed and steps required to be taken by the 1979 Rules have not been foJlowed/taken. In our views as this Octroi tax was sought to be levied after the making of the 1979 Rules, compliance ihereof was mandatory. Impugned notification dated 29-7-1980 of Union Council Bau Khan is accordingly declared to be without lawful authority and of no legal effect and taxes cannot be recovered under this notification. 24. The parties to these petitions will bear their own costs. Interim relief had been granted to the petitioners on most of these petitions on their furnishing bank guarantees on depositing amounts with the Nazir of this Court., To enable the respondents to seek relief from the Supreme Court of Pakistan, in case they choose to do so, it is ordered that the bank guarantees furnished by the petitioners shall remain in force for a period of six weeks from the date of this judgment whereafter the same shall stand discharged and cancelled. Similarly where amounts have been deposited, the same can be withdrawn by the concerned petitioners after expiry of $ix weeks from today. This restraint is being imposed to avoid complica­ tions in case stay of this judgment is granted by the Supreme Court of Pakistan. (TQM) Order accordingly.

P L J 1983 Karachi 142 P L J 1983 Karachi 142 rresent : G. M. kourejo, J MUHAMMAD ARIF—Appellant versus Mirza QANNAT HUSSAIN—Respondent First Rent Appeal No. 212 of 1980, decided on 15-6-1982. (i) Sind Rented Premises Ordinance (XVII of 1979)—

S. 15 (2)(vll)~ Eviction Proceedings— Bonafide personal requirement — Landlord, medically advised not to climb up stairs applying for eviction of appellant for personal requirement—Infirmity of respon­ dent and illness of his son and inability of both to climb over stairs supported by affidavit and not controverted by appellant on account of his failure to file wrjtten reply— Held: Bonajide Personal need of landlord established in circumstances. [P. 145] D (il) Civil Procedore Code (V of 1908)—

O. IX. R. 13 read with Sind Rented premises Ordinance (XVII of J979J-S. 15 <§ 1<»(2)— Ex pane eviction order—Setting aside of— Appellant not filing written reply to eviction application at least for five dates of hearing—Rent Controller allowing last chance to file reply on or before 2-9-1979—Appellant leaving Pakistan for India on 2-9-79 without filing such reply—Rent Controller proceeding ex parte against tenant—Appellant even after his coming back not filing any replv and after waiting seven days after ex parte eviction order, ap 1 ing for selling aside of same—Appellant failing to prove by suC 0 ,'nt.and satisfactory evidence urgency to leave Parisian and also show ng no re.ionable excuse for his failure to file written statement on or before 2-9-79— Held : Appellant being highly negligent in I dealing with his case, ex part'e eviction order not to be interfered with. (P. 144]A.B&C it Mr. Shahanshah Hussain, Advocate for Appellant. Mr. Abdul Rahman Memon, Advocate for Respondent. Dates of hearing: 17/18-1-1982. judgment The facts leading up to this appeal briefly stated are that the appellant is the tenant of the respondent in the premises on the ground floor of ihe house situated on Plot No. 8/8-H-F, Karachi, on a monthly rent of Rs. 225/-. The respondent along with his family lives on the 1st Floor of the same house. The respondent is an old man and his son is suffering from haemo­ philia and they are advised medically not to climb up the stairs or else they will loose their lives. The respondent, therefore, filed a Rent Case No. 406 of 1979 in the Court of the Vth Rent Controller. Karachi against the appellant for his eviction on the ground of his bonafide personal use of the house in question. The learned Rent Controller served the appellant wiih notice and his Advocate Mr. M. Moazzam Baig filed power on bis behalf on 22-4-1979. He obtained a number of adjournments for filing written statement and the matter was finally adjourned to 16-8-1979 on which date the following order was passed :— "Time allowed as a last chance. Written statement to be filed on or before the next date of hearing. Put off to 2-9-1979." On 2-9-1979, neither the appellant nor his Advocate appeared in the- Court and the learned Rent Controller having waited upto 2.00 p.m. passed an order to proceed with the matter ex pane against the appellant. 2, On 2-9-1979, the appellant proceeded to India without filing the written statement or having contacted his Advocate to obtain lime. An intimation with regard to the, matter to proceed ex pane against the appellant was sent to him at his address by a registered post and his mother received the same. She kept the same till the appellant returned from India ou 11-10-1979, whe she gave the fttter to him. In the meantime the respondent's Advocate silbmiutd ex parte proof in the shape of his filing affidavit and ex parte order of eviction from the premises was passed against ihe appellant on 15-10-1979. The appellant oto 21-10-1979 filed an applicalion under Order IX, Rule 13 rtad with Section 151 C.P.C. fo setting aside the ex- parte order of eviction passed against him on 15-10-1979. Affidavits and counter-affidavits were filed in support of contentions raised on behalf of the parties. The appellant contended thai he could not file the written statement as he was out of country in India on account of his pressing demand there urgently. He was contradicted by the respondent in his contentions. The learned . Rent Controller dismissed bis application on 23-2-1980. This appsal is directed against the impugned orders passed by the learned Rent Controller on 15-10-1979 directing eviction of the appellant from the premises in question and passing on the vacant possession to the respondent within 30 days of the order, and the order dated 23-2-1980 dismissing the application for setting aside the above mentioned ex parte __ order of eviction. 3. I have beard Mr. Shahanshah Hussain, the learned counsel for the appellant and Mr. Abdul Rehman Memon, for the respondent. It has been contended on behalf of the appellant that he failed to file the wrilten statement on 2-9-1979 as he had urgently to go to India on that date and the failure on his part, was not without reasonable excuse. It has been contended on behalf of (he respondent that he had already obtained much iime for filing the written statement and that he could delay his departure by one day or even by few hours to file the written statement and that even after coming back on !l-!0-19?9 he slept over the matter, though his mother handed over the intimation of the ex parfe order having passed against him immediately and, therefore, he was guilty of gross negligence and he could not plead'a reasonable excuse. What I find from the record that the appellnat has filed his own affidavit and that .of his mother Mat. Badar Jehan Begum. His own affidavit shows that he had to go urgeo'ly to India to see his seriously ailing cousin but the affidavit of his mother is silent about such pressing demand of the appellant in India on account of the serious illness of his cousin. There is no other evidence produced in support of such contention except that the appellant has produced his passport to show that he was out of station in India from 2-9-1979 till 111-10-1979. What is evident from the material on the record that the •Advocate of the appellant had obtained sufficient time for filing the written 'statement at least for five dates of hearings, when the matter was adjourned to 16-8-1979 on which date final order was passed to file the written state­ ment on or before 2-9-1979. The appellant could file the written statement before 2-9-1979 or even on 2-9-1979 before leaving for India, had he been careful to Souk after the proceedings of his case. He could, even after Icoming back on ! 1-10 1979 and having been intimated by his mother about jthe intimation of the ex parse proceedings contact his Advocate, and move an japplication to she Court for setting aside the ex parts ordes but he chose to jiwait till the order for eviction was passed on IS 10-1979, whereafter also fafier waiting for six days he moved an application for setting aside the ex parte order of eviction passed against him. His conduct makes it very clear that he was grossly negligent in dealing with his cese. Section 19(2) of the S'ind Rented Premises Ordinance,-1979 reads as follows : — "Where on the day fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent-has failed t.o file his reply without any reasonable excuse the Controller may proceed to make an ex pane order and after such order has been made the Controllershall have no power to rescind such oider." The circumstances of the present case in the light of the above men­ tioned provision make it very clear that the appellant had no reasonable excuse I'or his failure to file the written statement on 2-9-1979. He has f.uled to prove by suffi.-ient and satisfac'ory evidence to the effect that he urgcaily called to see his ailing cousin in India, Even his own mother is silent in that respect in her affidavit. He has also failed to produce anyj.her evidence i.i that respect. Had it been so, he could produce the letters or telegram or even oiher material to show that his cousin was ill in India. He coulJ have AleJ thy written statement before leaving for India or could have even rrnved an application to the Court after his return to avoid the ex pane order of eviction against him which was passed on 15-10-1979, if he had taken a slightest care and had shown a careful concern about his case. Trie material and the circumstances on the record, therefore, make it very elcur that the appellant had no sufficient cause, much less a reasonable jxouse for having failed to rile the written statement on 2-9-1973. What I further liiJ that the reason for the personal need of the respondent shown n his application filed before the learned Rent Controller, was the old age of ine respondent aud. therefore, bis infirmity and illness of bis son and their inability to climb over the stairs and to go to (he 1st Floor of the bouse where he was living. His contention in thnt respect has not only been upported by the affidavit but has also has not been controverted on Account of the failure of the appellant to file written statement, on account of his gross negligence. I would, therefore, find the personal need of the respondent bonafide as well, the claim which has not been challenged on behalf of the .appellant. There is no other issue involved for adjudica­ tion in this appeal. The impugned orders passed by the Rent Controller on 15-10-1979 and 23-2-1980, therefore do not call for interference, 4. The result is that the appeal is dismissed with costs. However, the appellant is directed to hand over the vacant, possession of the premises in .question to the respondent within a period of two months, from the date of this judgment. <M1Q) Appeal dismissed.

P L J 1983 Karachi 145 P L J 1983 Karachi 145 Present : G. M. kourejo, J VIQAR AHMAD—Appellant versus muhammad ashraf— Respondent First Rent Appeal No. 509 nf 1980. decided on 31-5-1982. (1) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)—

S. 13(2X/)—Eviction Proceedings—Default—Practice of collecting rent in lump-sum—Plea of—Appellant contending there being practice by land-lord of collecting rent in lump-sum, no wilful default committed by him— Held: Appellant not to be competent to plead practice against contract between parties or against provision of law. [P. 149}A PLJ 1980SC 431 ref. (ii) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)—

S. 13(2)(/)—Eviction Proceedings—Default—Tenant required by rent deed to pay rent in advance continuously defaulting in payment of rent— Held: Tenant having been proved wilful defaulter in payment of rent to be liable to be ejected from premises. [P. 149]fl (iii) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)— -—S. 13(3)(/)—Eviction Proceedings—Personal requirement— Bono fide of—Landlord disclosing no purpose of requirement either in pleadings or in evidence adduced by him— Held: Landlord in no circumstances to be relieved of his basic onus to prove affirma­ tively his bana fidely requirement of premises for personal use- Landlord in case having failed to discharge onus heavily laid on him, ground at" personal bonafide use of premises not to be available for eviction of tenant. [Pp. 149 & 150]C Mr. A R. Kazl, Advocate for Appellant/Petitioner. Mr. Nalmatullah Svomro. Advocate forRespond cm. Date of hearing : 30-11-1981. judgment This appeai i& directed against the order dated 31-5-1980, passed by the learned Rent Controller, Hyderabad, ordering eviction of the appellanttenant from Bungalow No. 623, Unit No, 2, Latifabad, Hyderabad ia favour of the respon 'eat. 2. The facts leading up to she appeal briefly stated are that the premises Bungalow No. 623, Unit No 2, Latifabad, Hyderabad were let out by ihe respondent-landlord to the appellant-tenant at the rate of Rs, 450/- per month payble in advance uptot 15th of eacb calendar month against valid receipj to be issued by the respondent-landlord and such rent deed was executed between the parties. By mutual consent rent was enhanced from time to time from Rs. 450/- to Rs. 600/-. The appellant-tenant was paying the|rent @ Rs. 6G0/- per month w.e.f. February, 1977. As per terms electric, sui gas, water and conservency charges were not included in the rent. They were however, to be paid by the tenant and were being paid by him at Rs. 50/- per month when the rate of rent was Rs. 45Q/-per month it was increased to Rs. 100/- when the rate of rent was enhanced to Rs. 500/- by mutual consent. The appellant being irouble-some tenant committed defaults in payment of rent. He paid rent from Januray, 1978 to Jane, 1978 on 15-7-1978 and from July, 1978 to October. I9f8 on 6-11-1978. The respondent-landlord accepted the rent under protest. The tenant-appellant also failed to pay rent w.e.f. November. 1978 @ Rs. 600/-per month in spite of repeated demands. He failed to pay electric charges since February, 1977. However, there was a separate electric connection w.e.f. March, 1979 and he was liable to pay the separate bill of electric from that month. He also failed to pay water and sanitary charges since 1973 with the result that the res­ pondent-landlord was compelled to pay the arrears. The result was that the appellant committed defaults in payment of rent as well as the electric, water, sui gas and conservancy charges which was the liability of the tenant. The respondent-landlord ajso needed the premises for his boaafitft personal use. We. therefore, filed an application for ejectment under Section 13 of Sind Urban Rent Restriciion Ordinance, 1959 against the appellant-tenant on ground of default in payment of rent as well as electric, water, sui gas and conservancy charges and also on his bonafide need for personal use in the Court of learned Rent Controller, Hyderabad. 3. The appellant-tenant resisted the application on both the grounds. He contended that the rent of the premises was initially fixed @ Rs. 450/- per month which was subsequently enhanced to Rs. 500/- per month. He further contended that Rs. 50/- per month was to be paid towards electric, sui gas, water and other charges exclusive of the rent of Rs. 450/- in the beginning and they were increased to Rs. lOO/- per month when rent was increased to Rs. 500/- per month. He has contended that w.e.f. November, 1978 the respondent-landlord demanded further enhancement of rent. The appellant-tenant refused to pay as a result that the rent application was filed. He has further alleged that the prevailing practice" between the parties was that the respondent-landlord used to collect the rent himself in lump-sum for 3 , 4 or 5 months as a result: that the rent used to be accumulated and used to be collected by the respondentlandlord at his convenience. He has denied that the respondent-landlord at all required the premises for his bonafide personal use. • 4. The learned Rent Controller decided both the issues of willful default in payment of rent and bona fide requirement of the landlordrespondent for his personal use in favour of the respondent-landlord and allowed his application directing the appellant-tenant to hand over vacant possession of ihe premises in dispute to ih'e respondent within 30 days from ihe date of the impugned judgment wiih the result that the appellant has come in this appeal. 5,. I have heard Mr. Abdul Rahim Kazi, the learned counsel for the appellant and Mr. Naimafullah Soomro for the respondent at considerable length. The appellant-tenant has examined himself and has relied on receipts Exs. 20, 21 and 22, whereas on behalf of the respondent-landlord bis attorney Haji Shacnsuddin has been examined and receipt Ex. 14 & I 5 as well as ieHers Esh. 16, 17 and 18 have been relied. 6. The contentions raised on behalf of'the tenant-appellant by his learned counsel are thai the rate of rent was increased ultimately by mutual consent to Rs. 500/- per month excluding Rs. 100/- which were to be paid towards electric, sui gas, water and conservancy charges and not Rs. 600/- per month excluding electric, sui gas, water and conservancy charges. The further contention raised on his behalf is that there was a practice between the parties that the landlord used to collect the rents in lump-sum and since the appellant failed to pay rent at the rate of Rs. 600/- per month excluding the charges as ultimately demanded by the respondent-landlord, he filed the application for ejectment. He further coniended that the requirement of the respondent for his personal use is not bonafide. 1. On behalf of the respondent the contentions raised are that the ultimate rate of rent agreed between the parties was Rs. 600/- per month excluding eie-tric, sui gas, water and other charges and that there was no practice of collection of rent in-lump-sum as contended on behalf of the appellant and that the appellant was persistent defaulter. The further conten'ion on his behalf is that bis requirement for the persona! use was bona fide, 8. As regards the contention to the effect that the appellant was wilful defaulter the burden of proof of which heavily lay on the respondentlandlord, has been satisfactorily discharged by him as would be clear from the documentary evidence available on the record in that respect. The appellant has relied on the old receipts Exs. 20, 21 and 22 of which the last receipt is dated 29-2-1976, when the rent was alleged to have been enhanced by mutna! consent from Rs. 500/- to Rs. 600/- per month exclusive of the other charges from February, 1977. The appellant has failed to produce any receipt for ihe period after February, 1977. The receipis relied on by him are very clear ro the effect that the rent initially was fixed at Rs. 450/- per month excluding electric, water, sui gas and other charges at the rate of Rs. 50/- per month which were to be paid by the appellant-tenant. The receipt Ex. 22 makes it further clear that (he rent was enhanced from Rs. 450/- to Rs. 500/~ and Rs. 50/- per momh towards other charges were enhanced to Rs. iOO/- per month to be paid by the appjiiant-tenanE in ail Rs. 600/- per month by mutual consent. The app^lla'H has not bien able to produce any other receipt to the effect thu ihire W4J ru further increase in the rent by mutual consent w.e.f. — Feb-uary, -1977. qi the other hand the respondent-landlord has relied on receipts Exs. 14 & 15 dated 15-7-1978 and 6-11-1978 respectively, Ex. 14 is for Rs. 3.600/- rent paid for the months from January 1978 to June, 1978 at the rate of Rs. 600/-per month and Ex. 15 is for Rs, 2.400/- for the months of July, 1978 @ the rate of Rs.^600/- per month. Th^ receipts make it very clear that this rent is exclusive of electric, sui m water and other charges. The receipts themselves very clearly show tiur only rent of the premises has been mentioned therein. This posi^ would be further clear from the letters Exs. 16, 17 & 18 addressed by ^ father of the appellant to the attorney of the respondent-landlord f» warding bank drafts to the attorney. These Bank draft were forward^! to the respondent after the filing of the rent application as this first le;\» Ex. 16, was written on 3-7-1979. The respondent accepted these but drafts under protest and so also the rents as shown in receipts Exs. 14 d if as they were paid collectively for six months respectively. These leiitm Exs. 16. 17 and 18 would clearly show that the rents for the months sbon there in which were pajd after the rent application was filed were cIea-% paid at the rate of Rs. 600/-per month exclusive of the charges toward electric, sui gas, water, etc. as it is more or less an admitted position th since March 1979 the appellant-tenant has got separate electric and otbe connections and was to pay these charges separrtely and independen-jj of the monthly rent. The rents paid as disclosed in these letters Exs. ii 17 & 18 by ban drafts were obviously for the months from March, 191 to January, 1980 as weH. Had by mutual consent the rent been agree! at ihe rate of Rs. 600/- per month inclusive of electric, sui gas .and ojh« charges as contended by the appellant there was no reason on his p« to have sent the rent @ Rs. 600/- per month by bank drafts when be bf to pay up the electric, sui gas, water and other charges direct to the concerned departments as admittedly he had separate connecion w.e.f March, 1979. The contention raised on behalf of the respondent to tht effect that the rent ultimately enhanced by mutual consent was Rs. 600.1. per month exclusive of the electric, sui gas, water and other charges gt» a clear support from the documents produced by the respondent-landlord On the other hand the appellant has produced old receipts for the periof long before February. 1977, when the front was ultimately enhanced it Rs. 600/- per month exclusive of the other charges. Had the appellant 1 ! vision been correct ihere is no reason why he could nq't have product^ rent receipts of the period after February. 1977 which/alone could bav t supported his version. In fact the appellant has himself admitted in ba cross examination that the rent of Rs. 600/- does n<>t include electric sui gas, water and other charges. Therefore, there is no doubt the rate of rent ultimately agreed mutually was Rs. 600/- per month exclusive of the electric sui gas and other charges. The contention raised on behag of the appellant in that respect therefore, has no substance. 9. The further contention raised on behalf of the appellant to the effect that there was practice prevailing between the parties to the effect that the landlord was collecting the rent in lump-sum and therefore, in view of the defaults he has committed, he is not a wilful defaulter, ii equally without substance. He has contended that the application foi his ejectment from the premises was filed as the respondent was demanding higher rent from him, which he had refused to pay. Tt was held in the case of Hajl Sharafuddin v. Sablr Hussain and others reported ic 1973 SCMR 309, that the liability to pay or tender the rent due remain on the tenant, irrespective of the higher amount demanded by the land­ lord. So far the pica raised on behalf of the appellant that a practice had arisen between him and the landlord and the rent will^be paid periodically after intervals of 3, 4 or 5 months is concerned,'reliance has been placed on the authority reported in the case of Jlbdul Raslrid v. Saleh Muhammad reported in PLJ 1980 SC 431. It was held therein ihat the panic 1 ; cannot contract themselves ou: of the provisions of iaw nor can any party plead a practice contrary to law. It was also held thai the mere fact of landlord having accepted delayed payments in the past cannot be said to have given rise to a practice authorising the tenant to make delayed payments in derrogation of^provisions of Section 13 of the Ordinance, 1979. Ft would be useful to refer to the following observations of the learned Judges of the Supreme Court in that respect :— '8. This plea is based upon a misconception with regard to the legal position op the point, h has been held time and again that in such cases the panics cannot contract themselves out of the pro­ visions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly, neither party can plead a practice which is contrary to ihe said Jaw. Moreover, the- mere fact that a landlord accepts a delayed payment of rent by the tenant on number of occasions, cannot be said to have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant hy the 15th of every month. It was held by this Court in S. Riaz Alt v. S/iabbir Ahmed Khan (1971 SCMR 598), that "a tenant cannot lead evidence in variation of the terms and cond+Tions of thi written agreement »>f lease, and moreover, the receipt of rent by the landlord-respondent forseveralt months as a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rents". Accordingly the appellant can nu;her plead a practice againsr the contract between the parties nor against the provisions of law. According to the rent deed he was required to pay rent in advance upto I5ih of each calendar month and according to lav; within I5 days after the expiry of the time fixed rn the agreiSfcent. On the admitted facts of ihe case it would be clear on the basis ol she documentary evidence available on the record that the appellant defaulted in payment of rent, continuously^ as is allowed on behalf of the respondent landlord. On the facts and circumstances ot ihe present case, therefore, there is no doubt that the appellant-tenant is proved to have been wilful defaulter in the payment ol rent and is liable to be ejected from the premises in question of this ground alone It). As regards ihe contention with regard io requirement cf the premises in dispute fur bo>io fide personal use of the respondent, ^there is. hardly any evidence available on ihe record in support of such require­ ment. The respondent-landlord has examined his attorney, wheieas ihe appeila/it-ienant has examined himself. No purpose of the requirement has bee.i disclosed either in the pleadings or in the evidence adduced on behalf <>; ihe respondent On the contrary it is admitted thai the respondent is a school leachcr serving at Daro, Disirict Thatta, sufficiently far away from Hyderabad and is permanently residing there. On his behalf, ihe only reason disclosed is that he would assure that on getting the premises he would use it for his personal use only. The appellant l\a in bis evidence challenged the bona jide of his requirement for nilpersonal use, J find only a solitary word of the respondeni-landSon 1 against a solitary word of the appellant-tenant. The landlord in no (circumstances is relieved of his basic onus to prove affirmatively the ihc does bonafidely require the premises for his peasona! use. In view cf phe evidence available on the record the landlord-respondent has faile-f |to discharge the onus which heavily lay on him. I would find the cast in favour of the appellant on this ground of landlord's requirement for hi personal bonafide use of the premises. II. The result would be that the appeal is dismissed. However, tf appellant shall hand over the vacant possession of (he premises in dispute to the respondent-landlord within a period of two months from the date of this judgment. <M!Q) Appeal dismissed

PL J 1983 Karachi 150 PL J 1983 Karachi 150 Present : G. M. KouREJO, J DOLLA alias DARA—Petitioner versus ADDITIONAL SETTLEMENT COMMISSIONER; Sukkur and 2 Others- Respondents Constitutional Petition No. 958 of 1974, decided on 20-1-1982. Permanent Transfer Deed—

Issuance of—Se-ttlement Authorities—Jurisdiction of after issuance of PTD —Held : Settlement Authorities not to re-open case in order to demarcate house after PTDs having been issued long back to parties transferring their respective houses to them especially when no allegation of fraud or misrepresentation made. [Pp. 151 & 152] A PLJ 1981 SC 354 & PLJ 1981 Kar. 693 ref. Mr. M, H. Siddtql, Advoca'e for Petitioner. Mr. Nooruddln Shaikh, Advocate for Respondent No. 3. Date of hearing: P-12-1981. judgment This petition impugnes the orders passed by the Deputy Settlement Commissioner, Sukkur dated 9-2-1972 and 21-1-1974 and that of Additional Settlement Commissioner, Sukkur. dated 16-5-1974 as being illegal and without lawi'ul auihority. 2. Briefly the facts leading upto this peiition are that respondent No. 3 Mumtaz was transferred house No. !D/51 corresponding to CS No. D-234/1. shualed at Tando Adam on NCH form and PTO was issued to him on 3-2-1961 and PTD was issued to him on 24-10-1963. He got the house mutaied in City Survey record on the basis of PTD. The petitioner was in pnSseision of the adjoining house bearing No. ID/51-A corresponding 1 to CS No. D-231/2. He purchased it in auction and PTD was issued to him on 27-2-1965. Orgmally the two houses formed one survey number 234 and the Settlement Authorities in order to transfer the house abovcmentioncd to respondent No. 3 resurveyed and bifurcated the said survey No. 234 into two equal portions resulting in the transfer of the houses to the respon­ dent No. 3 MunLfraz and the petitioner as stated above. It is so happenedthat Mst. Habiba sister of respondent No. 3 was in occupation of a small room in the house transferred to the petitioner and that on her failure to acknowledge the petitioner as the landlord the Rent Case No. 3/70 was filed against her in the Court of Rent Controller, Shahdadpur by ihe petitioner under Section 13 of the Rent Restriction Ordinance, 1959. wherein it was held that there existed relationship of landlord and tenant between the petitioner and Mst. Habiba. It further seems that two persons namely Shahabudin and Amarali had unauthorisedly occupied the portion of the house that was transferred to respondent No. 3 who filed a suit No. 55/69 in the Court of Civil Judge Shahdadpur against them for their ejectment which suit was decreed on 16-7-1979. Subsequently respondent No. 3 claiming the portion of the bouse transferred to the petitioner obviously a room that was in possession of his sister Mst. Habib made an application to the Deputy Settlement Commissioner for demarcation as he claimed the room to be included in the house that was transferred 10 him. The Deputy Settlement Commissioner disn>i>sed his application. Thereaficr be went to the Additional Settlement Commissioner in appeal who remadned the case to the Deputy Settlement Commissioner who allowed it wiih the result that the petitioner went in revision before the Additional Settlement Commissioner who dismissed the same resulting in the present petition. 3. Mr. M. H, Siddiqui, the learned counsel for ihe petitioner, has mainly contended that after issuance of PTD on 27-2-1965 in favour of ihe petitioner the house in question has sei/ed to be evacuee properly and. therefore, the Settlement Authorities had r i jurisdiction to embark on its demarcation^ The learned counsel has furiher contended that the question of transfer of the house could not be reopened unless there was a fraud 01 misrepresentation on tbc part of the petitioner, but there was no such allegation in the present case. It is true that the admitted position is that the two houses were transferred DS-ID-51 corresponding to CS No. 234/1 it uated in Tando Adam to respondent No. 3 and DS-ID/5I-A correspond­ ing to CS No; D-234/2 Jto the petitioner. The two houses originally arw out of a big plot No. 234 bifuricated by the Settlement Authorities Mi order to facilitate the transfer and the PT'Ds were issued to the respondent No. 3 and the petitioner respectively. It is also admitted that after the PFDi? were issued the respondent No. 3 filed a Suit No. 55/6^ in the Court of Civil Judge, Shahdadpur against the iwo persons have mentioned who were alleged to have unauinorisedly occupied the same for their ejectment and that respondent No. 3 in the itrst para of the plaint iibelf had stated thai hou^e No. fD-51 corresponding \o CS No. 234/1 measuring 138 Sq. Yds. situated in Jatia Para, Tando Adam was permanently transferred >o him hy the Settlement Authorities and PTO dated 3-2-1961 and PTD dated 24-10-1963 were iisued in his favour. Ii appears that he seemed to have reconciled with ihe situation, as for back as in the yeas !969. What is furiher admitted that the petitioner finding that A/if. Habiba wa ii> occupation of one rmali room in the house thai was transferred to him filed ejectment case against her in the Court of the Rent Controller Shahdadpur wherein it was he!d thai there existed relationship of landlord and tenant between them vide order dated 22-5-1972 by the learned Rent Controller It would, therefore, appear that the respondent No. 3 appears to have been! satisfied with the house that was transferred 10 him and the contention to the effect that subsequently be wanted only to reopen the- matter in order to grab the portion of the house transferred to the petitioner is not without force. The Settlement Authoriiie-s in such a situation cannot reopen the lease at this stage in order 10 demarcate the- house after PTDs were ilong back to the parties transferring their respective houses to them [ally when no fraud or misrepresentation has been alleged against -« 'petitioner in that respect. My attention has been invited in that respe: to th e decision in the case of Afxt. Mumtaz Jehan Begum v. Settlement av Rehabilitation Commissioner and Others reported in PLJ 1981 Kar. 693, a^e also in the case of Abdul Hamldv. Ghulab Khan & Others reported in Pi_ Iv81 SC 354, wherein it has been clearly held that the Settlement Authe-. ties could not reopen the case after issuance of PTD in respect of the property transferred in favour of the petitioner. It has also been clear» held therein that after issuance of PTD the Settlement Authorities becora? functus officio unless fraud or misrepresentation is alleged which admitted} is not alleged in the present case. 4. In the result, the impugned orders passed by the Settlement Authorities are set aside and the petition allowed. However, there will bt no order as to cost. (TQM) Petition accepted

PLJ 1983 Karachi 152 PLJ 1983 Karachi 152 Present : saidxjzzaman siddiqui, J ANWAR MUHAMMAD—Appellant versus INAMUR RAHIM KHAN—Respondent First Rent Appeal No. 500 of 1980, decided on 9-9-1982 West Pakistan Urban Rent Restriction Ordinance (VI of 1959)—

Ss. 13(3)(/)& 15—Eviciion proceedings—Personal requirement— Bona fide ol —Challeng'e to—Respondent landlord reasonably establish­ ing persona! requirement of premises and evidence of his witnesses not shaken at all in cross-examination nor anything brought in rebuttal to dislodge same— Held : Mere fact of respondent having not immediately after purchase served notice of vacation of premises on tenant on ground of personal and bonafide requirement not to be surfi.-ient to'consirue that applicant lacked bona fide. [P. \53]A Mr. Maqsoom Hasan Rizvl, Advocate for Appellant Mr. Khalid Humayun, Advocate for Respondent. Date of hearing : 9-9-1982. judgment This appeal is directed apain>t the order of Rent Controller, granting ejectment application of the respondent on ground of personal and bonafide requirement. The personal requirement pleaded in the application relates to the need of the family of respondent. The respondent allegedly wants to settle his children at Karachi as the education facilities at Kuwait where the respondent is in service are not proper. The admitted position in the ca<e ss that the house in occupation of appellant is adjacent to the houses owned by the father and widow sister of respondent. The Rent Controller afier examining the evidence on record came to the conclusion that the respondent needed the premises bona fidely for settlement of his family at Karachi. The respondent who personally attended the proceeding in this court on the last two dates of hearing is present today in cowrt and states that he has resigned from his job in Kuwait and has come down to Karachi for permanent settlement about a year back and that his children are schooling at Karachi for the last one year. He offered to produce hi passport and progress reports of children but it is not necessary to examine these new facts as after examining the evidence on record I am satisfied that the conclusion and inference drawn by the Rent Controller on the evidence duly recorded in the case are neither perverse nor contrary to evidence on record. The learned counsel for the appellant contends that the application filed by the respondent was not a bone fide one as the respondent though allegedly purchased the house with the intention of settling his family in Karachi in the year 1975 but no notice was given to the appellant for vacating the premises until May, 1978 and therefore, it should be construed that the application lacked bonafide. It is also con­ tended by the learned counsel that the real dispute between the parties was regarding enhancement of rent which the appellant refused to accept. None of these contentions have impressed me. I have gone through the evidence recorded in the case and I after going through the evidence recorded in the case satisfied that the respondent qas reasonably established his personal bonafide requirement of the premises. Hie evidence of respondent's witness was not at all shaken in the cross-examination nor anything -was brought in rebuttal to dislodge the same. The fact alone that the respon­ dent did not immediately after purchase of the. house serve notice on the appellant asking him to vacate the premises on the ground of personal anc bonafile requirement is not sufficient to construe that the application lackec bonafide. I see no reason to interfere with the order of Rent Controller. The appeal is accordingly dismissed with no order as to costs but the appellant is allowed two months time to vacate the premises. (TQM) Appeal dismissed.

P L J 1983 Karachi 153 P L J 1983 Karachi 153 Present : salebm akhtar, J SUI GAS TRANSMISSION COMPANY LIMITED, Karachi—Plaintiff Versus m.v. "GOOD HERALD" and 2 Others—Defpidants Civil Misc. Application in Adm. Suit No. 40 of 1982, decided •n 20-4-1982. (1) Admiralty Jurisdiction of High Courts Ordinaoce (XIII of 1980)— —-Construction of—Held : Ordinance being remedial to be construed liberally to afford utmost relief without doing any violence to fair meaning of language. [P. 154}A (il) Admiralty Jorisdlction of High Coarts Ordinaoce (XIII of 1980)—

S. 3 (2) C)— High Court—Admiralty Jurisdiction of—Held: Existence of agreement from which rights of parties to flow to be established in order to sustain claim under subsection—Held further, S. 3 (2) (A1 being wide enough to cover all contractucal and tortious case arising out of agreement relating to carriage of goods P. ! 5i5.

P L J 1983 Karachi 1SS P L J 1983 Karachi 1SS Present: saibuzsaman siddiqoi & salbbm akhtas. JJ M/s H. NIZAM DIN & SONS, Karachi-Appellants versus COMMISSIONER OF SALES TAX, East Karachi—Respondent Sales Tax Reference No. 116 of 1972, decided on 29-11-1982. Sates Tax Act (I!! of 1951)^- ——S. 7 and Notification No. S.R.O. 51 (R) daied 1-7-1961—Sales Tax—Exemption from payment of—Centra! Govt. exempting from tax certain goods manufactured or produced in Pakistan and vales for delivery outside Pakistan provided same be actually to delivered— Htld: Wording of Notification being wide enough, same not to be given restricted meaning and goods when manufactured or produced in Pakistan, sold for delivery outside Pakistan and in fact so delivered, conditions laid down by Notification to stand satisfied—HcW further : Exemption being in respect of goods, applicability of Noti­ fication not to be restricted to exporters and assessee not to be required to have personally exported goods in order to claim exemp­ tion from payment of tax. {Pp. 157 & 158} A d B (1967) 16 Taxation 97 rtf.

Mr. Alt Alter, Advocate for Applicants. Mr. Nairullah Awan, Advocate for Respondent. Date ofkeartng : 29-11-1982. judgment Salces Akhtar, J.—This !• an application u/S. 17 (1) of the Sales Tax Act 1951 raising the following questions : "(0 Whether in the facts and circumstances of the case the Income Tax Appellate Tribunal was right in holding that tents sold by the appellant to the Red Cross Society were not for delivery outside Pakistan, when the fact of export outside Pakistan was not disputed ? (//) Whether the Tribunal was right in holding that the exemption from sales tax was available only to an exporter and the applicant not himself being an exporter the exemption was not available to him? (tit) Whether there was any evidence in support of the finding of the Income Tax Appellate Tribunal that the tents sold by the applicant to the Pakistan Red Cross ^Society were not for delivery outside Pakistan and was not this finding in disregards of the evidence on record proving that the tents were actually delivered outside Pakistan I.e. Turkey". Briefly the facts are that the applicant is a firm em?aped inter alia in the business of manufacture, sale and export of tents and "thamianas'\ In the financial year ending 3uth June, 1967 out of the total sales. Ks, 31,58.1 II Represented export sale. In this amou it was included a sum of Rs. 84,200 In respect of sale of tent made by the applicant to Red-Cros> Society of Pakistan for delivery and donation for the relief of earthquake victims of Turkey. These tents were actually delivered in Turkey for relief purposes and a certificate was issued by ihe Red Cross Society of Pakistan, stating lhat tents purchased from the applicant shall be exported 'to Turkey. The applicant claimed exemption from the sales tax in respect of ihe sales of the Tents amounting to R>. 84,200 made to the Red Cross Society of Pakistan, but the Assistant Sales Tax Officer by his order dated 25-6-1982 refused this claim. An appeal was tiled by the applicant before the Appel­ late Assistant Commissioner, but the same was rejected. The applicant then filed an appeal before the Income Tax Appellate Tribunal, which was also rejected. The contention of the applicant was repelled by the Tribunal in the following manner: "We have beard the parties and given our earnest consideration to the facts of the case, but we are, however, unable to accept the contention of the authorised representative of the appellant that when there is no dispute with regard to the fact that tents were actually delivered in Turkey for relief of earthquake victims the appellant is entitled to exemption from payment of sales tax on the tents sold to the Red Cross Society in pursuance of the Notification quoted herein above notwithstanding the fact that the appellant did not export the tents put of Pakistan. The express requirement of the notification are that in order to qualify for exemption on the goods "are sold for delivery outside Pakistan". The facts of the present case do not clearly meet this specific requirement in-as-much as the goods were not sold for delivery outside Pakistan, but were admittedly soid in Pakistan and payment in respect thereof was received in Pakistan. A already held by ua in STA No. 155 of 1967-68 dated 2-2-1970 exemption is available only to the exporter and admittedly in the case before us the appellant is not the exporter, it made an out right sale to the Red Cross Society in Pakistan, and in case the goods were not exported the appellant could not compel the purchaser to export the same." The applicant had claimed exemption on the basis of Notification issued u/S. 7 of the Sates Tax Act 1951 (Ace 3 of 1951) which is reproduced hereunder: . . "(I) In exercise of the powsrs conferred by Section 7 of the Sales Tax Act, 1951 (III of 195!) and in supersession of the Ministry of Finance (Revenue Division) Notification No. 1, dated the 1st May, 1953 the Centra! Government is pleased to exempt from the tax payable under the said Act all such gdods (other than ginned cotton) as are manufactured or produced in Pakistan (including raw materials used in their manufacture or production), are sold for delivery outside Pakistan and are actually so delivered. (2) Where such tax has already been 'paid by a person not licensed under Section 9 of the said Act to a licensed manufacturer or a licensed wholesaler on any goods to which this notification applies, the amount of tax so paid shall be refunded to such person in accordance with the provisions of the said Act and in such manner and to such extent as may be prescribed)". It is clear from the Notification that in order to attract its applicability certain conditions are to be satisfied which ha\e been apecified as (i) thai the goods are manufactured or produced in Pakistan, (ii) that they are sold for delivery outside Pakistan, (///) that they are actually so delivered. Once these three conditions are satisfied the applicant becomes entitled! to claim exemption. A perusal of the order passed by the authorities at three stages makes it clear that at no point of time it has been disputed that the applicant had not manufactured the goods or thai the goods were not soid for delivery out side Pakistan or that they were mn .so delivered. These facts seem to be admitted and have not been questioned even by the learned Appellate -^ Tribunal. As thess necessary ingredienis have not been found lacking, the only question remains fjr consideration ; whe.her ihe applicant can claim exemption under the afore stated Notification. SRO 51(R) dated 1-7-1961 The only ground which has been made for rejection of the claim fof exemption by the learned Tribunal, and which has been reiterated by Mr. Nasruliah Awan, the I earned "counsel for the department, is that only an exporter can claim exemption and as the goods were sold in Pakistan, and the payment in respect thereof was received in Pakistan, the case does not fal! within the ambit of the Notification. The wordings of the Notification reproduced above are wide enough and cannot be given a restricted mean­ ing as contended by the learned counsel, for the respondents. If the goods were manufactured or produced in Pakistan, sold for delivery outside Pakistan and were so delivered the conditions laid down by the Notification g stand satisfied. It is not necessary that the assessee should have personally exported these goods. If a seller satisfie4 these three conditions he can claim exemption under the Notification. The exemption is in respect of (he goods and therefore, to restrict the applicability of the Notification to the exporters would be against its letter and spirit. Similar question arose : or consideration in case of Adam Ltd. v. Commissioner of Income Tax, 1961) 16 Taxation 97, referred by Mr. AH Athar, whereafter considering the provisions of the Sales Tax Act and similar Notification under which refund was claimed, following observation was made :— ''Now, it must be remembered that the exemption of sales tax by the said notification is in relation to the goods. AH that is necessary is that the three conditions mentioned in the Notification must be ful­ filled. Once that is done, the goods are exempted from sales tax." As the department has not challenged the fact that the goods were not sold for export and were actually exported and delivered, it is not possible to contend that the applicant is not entitled to the exemption on vhe ground that it had not exported the goods itself. We, therefore, answer the question in the following manner : (f) In the negative. (11) In the negative. (HI) The first point is answered in the negative and the second point in the affirmative. (TQM) Reference answered.

P L J 19S3 Karachi 158 P L J 19S3 Karachi 158 Present: nasir aslam zahid, J M/S. HABIB BANK LIMITED, 1. I. Cbundrigar Road, Karachi— Plaintiffs. Versus M/S. H. M. SILK MILLS LIMITED, Karachi and 4 Others—Defendant! Civil Misc. Application No. 3743/77 in Suit No. 230 of 1976, decided 0031-10-1982. Court Fee—

Payment of—Additional claim not previously mentioned in plaint- Payment of court fee on—Parties to suit arriving &t amicable senlemenl and filing application in court containing terms of compromise —Plainriff instead of filing separate <nit for recover of certain additionai amounts nut previously claimed in suit seeking compromise decree for increased amount also— Held: Plaintiff having avoided second suit by adopting such procedure, court.fee on additional amount claimed at rate applicable on date of filing of compromise Application to be payable by plaintiff—Civil Procedure Code .(V of I9U8)—O. XXIH. R. 3, Court Fees (Sind Amendment Ordinance :. (VII of 1977)—S. 2 & Court Fees Act (VII of 1970)—Ss. 7 & 35. [P. 16Q\A Mr. ffamza I. All. Advocate for Plaintiff. Mr. Mohstn Tayebally, Advocate for Defendant. Mr. Abdul Wall Makhdoom. Advocate for the Advocate-General, Sind on Court notice. Date of hear ing: 31 - i 0-198 2. order This suit was filed in this Court on 5-4-1976 by the plaintiff-bank against the defendants for the recovery of Rs. 1,55,73,581.38. At the time the suit was filed there was no maximum ceiling on the Court fee in Sind and as per the schedule of Court fee then applicable, the plaintiff paid a total Court fes of Rs. 3,90,1 IS/-on the plaint. It may be observed here that on 7-7-1977, Court-Fees (Sind Amendment) Ordinance. No. VII of 1977 was promulgated Amending the Court Fees Act, 1870 in its applica- .., lion to the Province of Sind by providing for a maximum ceiling of Rs. 15.000/- for court fee. Section 2 of Sind Ordinance VII of 1977 is as follows:— "Notwithstanding anything contained in the First Schedule to the Court Fees Act, IS70 (Act I of 1870) court fee payable thereunder shall not, in any case exceed fifteen thousand rupees." 2. The parties to this suit arrived at an amicable settlement and filed an application under Order 23 Rule 3 C.P.C. on 10-11-1977 containing the terms of the compromise. By order dated 10-11-1977. this Court passed a decree in terms of the said compromise application subject, however, ''to (he payment of deficit court fee, if any, within two weeks'. Plaintiff undertook fo pay the deficit court fee. The question of payment of further court fee had arisen as through the compromise application a decree for Rs. 2.57,37,539.38 was sought and passed as against the amount of Rs. 1,55,73,581.38 for which this suit was originally filed on 5-4-1976. 3. By the present application the plaintiff has sought a direction from the Court as to the amount of deficit court fee, if any, payable by the plaintiff on the facts stated above. One further relevant fact may be noted here and that is that the figure of Rs. 2,57,539.38 mentioned in the compromise application comprised ibe following amounts :— (0 Rs. 1,55,73,581.38 — amount originally claimed in the suit. (//) Rs. 86,63,9.' r

8.00 — amounts paid to I. D, B. P. and P.I.C.I.O. on behalf of the defendants after the filing of the suit. Hit) Rs. > 15,00,000.00 — paid by the plaintiff bank to the defendants on the dale of the decree. Total, Rs. 2,57,37,539.38 " 4. According to Mr. Hamza I. Ali, learned counsel for the plaintiff, no farther court fee is payable as on the dale of the compromise i.e. on 10-11-1977, the maximum court fee payable was Rs, 15.000/-, whereas a tottl of Rs. 3.90.115/- towards Court Fee had already been paid, In the alternative, it was argued by Mr. Hamza I. Ali thai at the roost an Additional court fee of Rs. 15,000/-can be charged as the compromise was made on 10-11-1977 !,e, on a date after the promulgation and coming Into force of Sind Ordinance VII of 1977. Mr. Mohsin Tayebally did not oppose the contentions of the learned counsel for the defendants. 5. Mr. Abdul Waii Makhdoom for Advocate-General Sind, however, contended that she compromise had ;hc effect of amending the plaint and to the circumstances the plaint will be deemed to be amended so that the original claim of Rs. 1,55,73,581.38 stood converted to a claim for R. 2.57,37.539.38 as on 5-4-1976 when the suit was filed. On the basis of this submission it was argued that deficit court fee is payable by the plaintiff at the rates applicable on 5-4-1976 before the schedule of court fees was amended by Ordinance Vlf of 1977. 6. From a perusal of the compromise application, it is apparent that the two additional amounts of R. 86.63.958/- and Rs, 15.00.000/-were paid after the present suit was filed. These two amounts, therefore, could not be part of the claim at the time the suit was filed on 5-4-1976. cannot, therefore, accept the contention that by the compromise application the amount claimed in the suit increased to the figure of Rs, 2.57.37.539.3S as from 5-4-1976. The compromise application also does not stay that the amount claimed in the suit will be deemed to have increased with effect from 5-4-4976. 7. In my view on the date when the compromise application was filed, the plaintiff could have filed a separate suit for the recovery of the additional amounts. Instead of filing a separate suit and filing two separate compromise applications, the compromise application filed in this suit on 10-11-1977 referred to the two addsuonai amounts and sought a com­ promise decree for the increased amount. By adopting this method a second suit was avoided. But the plaintiffs are liable to pay court fee on the additional amount claimed at the rate applicable on 10-11-1977 when the compromise application was filed. 8. Plaintiffs are, therefore, directed to pay additional court fee of Rs. 15.000/-. This should be done on or before 30-11-1982. C.M.A. 3743/77 stands disposed of. (1QM) Order accordingly.

PL J 1983 Karachi 160 PL J 1983 Karachi 160 Present : Z C. valliani. J MOINUDD1N QURESHI—Appellant versus THE STATE—Respondent Criminal Appeal No. 102 of 1976. decided on 16-1-1983, (I) laconic Tax Act (XI of 1922)- —Ss. 51 (2) & 52—Concealment of income and furnishing of inaicurate particulars—Offences of—Commissioner Income-la setting aside order, of I.T.O. farming basis of prosecution— Held; Conviction of appellant on such ground alone to be set aside. [Pp. 163 & 164] A 1977 P. Cr. LJ 538 & 1975 P Cr. LJ 1300 re/ (ft) Income Tax Act (XI of 1922)—

S. 151 (2)—Concealment of income—Direct evidence—Require­ ment of— Held: In absence of direct evidence to establish exact income allegedly concealed by appellant, provisions of S. 151 (2) not to be attracted. [P. 164 ] B 1971 PTD 457 ft 1970 PTD 576 & P LJ 198? Kar. 169 rel. <lll) Income Tax Act (XI of 1922)—

Ss. 151 (2) & 152—Concealment of income and furnishing of in­ accurate particulars—Offences of—Evidence—Appraisal of—Special Judge Taxation basing judgment on mere surmises and deductions rather than on any direct evidence about alleged concealment and false statements—Statements of defence witnesses also rejected without cogent reasons— Held: Reasonable doubt having been created m prosecution version, appellant to be entitled to benefit of doubt. IP. J64] C Mr. Ismail Hamirani. Advocate for Appellant. Mr. Alt Bakhsh Lagharl, Advocate for Respondent. Date of hearing: U-l-1983. judgment Appellant abovcnamed, being aggrieved by judgment dated 28th April, 1976 of the learned Special Judge (Customs and Taxations) Karachi, in a Criminal Case No. 60/75, by which the appellant has been convicted under Sections 51 (2) and 52 of the Income Tax Act and sentenced to suffer R.J. for one year and to pay fine of Rs. 20.000/- or in default to suffer further R.I. for 2 years, has preferred the above appeal, on the following factg and grounds:— 2. According to prosecution, appellant Moinuddin was ass ess et of Income-tax Deparment. He submitted his Income-tax Returns for the assessment years 1964-65, 1965-66, 1966-67, 1967-68, 1968-69 and 1969-70 under Self Assessment Scheme, before the concerned Assessing Authority viz. I.T.O. Circle 'G' East Zone, Karachi. According to the Income-tax Returns for six years, from 1964-65 to 1969-70 the total income of the appellant for said period was Rs. 45,632/- In his Return for assessment year 1969-70, the appellant declared taxable income to be Rs 8,382/-. This included income from the property at Rs. 4I82/-. Subsequently, on 27-4-1970 the appellant applied for iocome-taA clearance certificate, where­ in he mentioned his total investment in the property to be Rs. 50.000/-. Hi» application was accompanied by a copy of the sale agreement showing that the appellant was to sell his property for Rs. 80,000. In view of said application, the appellant was called upon to substantiate the source from where he had brought Rs. 50,000, which he had invested in the property. - During a departmental investigation, it was revealed, that the appellant had constructed, a 6 storeyed building on Plot No. 102, R.C 1 ^. In ih's way, it was alleged, thai the appellant had concealed particulars of his income and had deliberately furnished inaccu­ rate particulars of his ncome by declaring income of Rs. 45.632 for the y.ears I954--65 to "! 969-70 and by declaring taxable income to be Rs. 7600 and Rs. 8350 for the years during which the building was construed. It was alleged, that the appellant had suppressed his true income with which he had got constructed a building worth Rs. 1,80,825. ll was further alleged, that in his Return for the years 1970-71 and I97I-72, (he appellant had not shown amounts of Rs. 5500 and Rs. 7900 respectively and upon detention, he claimed said amounts as cash credits. It was further alleged, that the appellant made a false statement, that he had invested in his pro­ perty an amount of Rs. 50,000 although in his Weath Ssattment, filed on 30-6-69, he had shown investment in the property to be Rs. 79,000. Lastly, it was alleged that the appellant made false statements to the effect, that his tenants had borne part of the expenses for construction of the building and that he had borrowed some money from his father. Such complaint was lodged by complainant M.A. Aleem, Assistant Income-tax Officer, after obtaining approval from the Commissioner of Income-tax, East Zone, Karachi, for prosecution of the appellant. 3. The substance of allegations was read over to the appellant, who pleaded not guiity and claimed wial. 4. Prosecution examined complainant M.A. Aleem Ex. 2 and P.W Asad Arif Ex. 3 and closed prosecution vide Ex. 4 5. In this statement Ex. 5 the appellant admitted, that he was Assessed for Income-tax since she year 1964-65. He admitted, that undei 'he Self Assessment Scheme, he submitted returns for years 1964 to 1965 to 1968-69 to the concerned Income-tax Officer, 'G' Circle, Karachi. He also admitted, that in his Income-tax Returns Exs, 2-A, 2-B, 2-C, 2-D and 2-E. he showed his income to be Rs. 6700. Rs. 7200, Rs. '7400, Rs. 7600 and Rv 8350 respectively and on such amoun'.s, he paid the tax. Appellant also admitted that on 24-4-1970, he made application Ex. 2-F to fhc I.T.O, fora clearance certificate in respect of the property situated on Plot Nos..9/l-R.C. 3 and 9/2-R.C-3 at Ranchore Quarters, Karachi, but stated that in said application^he showed value of the property sought to be sold at Rs. 70,000 and not'atRs. 50,000. The appellant admitted that in his subsequent correspondence with the I.T.O. and in his Affidavit Ex. 3-C and in his Wealth Statement Ex. 2-H, he had shown value of said property to be Ri 70,000. Tr, reaped of the property mentioned in application Ex. 2-F, the appellant stated, this', ths same wa<; got constructed by him perlonaliy and not through :.on; ratio! •- jivl that flooring of the various apartments in the building was donh> respective tenants, who also installed electric fittings and sui gas in their various tenements. The Appellant denied having made false declaration in Wealth Statement Ex. 2-H, that value of his properf was R: 70,000 and that he had saving oi Rs. "100 on 1-7-1963. -The appsllaiv denied having issued letter Ex. 3-D " the Sncome-tax Authorities and explained that he had realized Rs ; 25,000 as loan from his father and had taken Rs. 10,000 from his son 4i:d said amount of Rs 35,000 was invested in his said building besides an amount of Rs 7,000 or Rs. 8,000, which he had in hand before being Assessed to Income-tax. The appellant denied having concealed the parti­ culars of his income and having furnished inaccurate particulars of his tncome in his income-tax Returns Ex. l-D and 2-E for 1967-68 and 1968- 69 He denied hiving concealed particular 1 ? op his actual income in the Returns Ei. 2-A Jo 2-B. He denied having furnished inaccurate particulars in said Returns tind having suppressed true income spent on construction of the building, The appellant denied having concealed particulars of his Income and having deliberately supplied inaccurate particulars of his income in the Return Ex. 2-t for 1970-71 and in his Return Ex. 2-J for 1971-72. In respect of the amounts of Rs, 5500 and Rs, 7900 allegedly omitted from said Returns, the appellant explained, that said amounts were collected by him as donation for a mosque, but the same were mistakenly deposited in his account in the bank. The appellant reiterated, that his tenants had spent on electric fittings, on suit gas installation!, on flooring and on shutters in his building. The appellant explained, that be had purchased a house contrary to wishes of Usman, who was friend of Aiad Arif and hence the latter had deposed against him. The appellant concluded his statement by saying that his revision application against imposition of penalty of Rs. 60,000 upon him was pending with the Com miisioner of Income-tax, that the matter regarding assessment of his la was pending in the High Court and that he had suffered a lot due to litiga tion and he was hard-pressed due to financial worries. 3. In his defence, appellant examined D.Ws Aijaz Ahmad Ex. 7, Attaur Rehman Ex. 8, Habibur Rehman Ex. 9 and Mohammed Raft Ex 10 Appellant closed his side under statement Ex. 11. 4. The learned trial Court taking into consideration the evidence Adduced before it, convicted and sentenced the appellant abovenamed as h;r«inb;fore rn intioned and consequently the appellant has filed the above ppsal. on the grounds mentioned in the memo of appeal 5. The learned Advocate appearing for the appellant submitted in upport of the above appeal as under : — (a) That the learned trial Court has failed, to appreciate the pro visions of Sections 51(2) and 52 of the Income Tax Act in the light of the Saw laid down by cases reported in 1977 Pak. Cr. L.J. p. 538, 1975 Pak. Cr. L.J. p 1300 and judgment of this Court dated 24- SI -82 in Cr, Appeal No. 68/76 and as such the impugned (6) That the impugned orders of the I.T.O. which formed the basis of the prosecution of the present appellant, were set aside by the learned Commissioner of Income Tax East Zone. Karachi and the cases of alleged mis-declaration and suppression of income had been remanded back to the I.T.O. concerned for rehearing and as such the very basis of the prosecution of the appellant does not exist at present. (c) The learned Advocate appearing for the State at the out-set sub­ mitted, that he was not supporting the impugned judgment, as the original orders on the basis of which the prosecution against the appellant was started has been set aside and furthermore the account books and other documents on which the conviction of 'he appellant has been based were not proved, in accordance with the law. before the learned trial Court. 7. It is admitted position, that orders of I.T.O. which formed basis! of the proieeuticm of the appellant have been set aside by the Commis-L lioner of [.i:o.iieTax, East Z>ae, Karachi and as such cases reported iui 1077 Pak. Cr, L.J. p. 538 aud 19?5 Pak. Cr. L.J. p. 1300 fully supports thef :3 Reparted as PLJ 1983 Kaiachi 169, fe<">nfention«; of the learned Advocale for the appellant, that on ihi^ falone, conviction of the appellant cannot be sustained 8. Further moie in the absence of direct evidence ip establish thexact income alleged to have been concealed by the appellant, provision of Siction 51 (2) of Income Tax Act. 1922 cannot be attracted. This vie of mine is fully supported by cases reported in 1971 PTD p. 457 and 197! PTD p. 576 as well as judgment dated 24-1 1-82 of this Court in Cr. Appea No. 68/76 (PLJ 1983 Karachi 169). In my opinion, the learned trial Cour has based its judgments on mere surmises and deductions, rather than on an; direct evidence about alleged concealment and false statements. I see nc cogent reasons to agree with the conclusions and findings of the learned trii court. I further find that statements of DWs have i been rejected without cogent reasons by the learned trial court. Statements of appellant under Section 342 Cr. P.C. coupled wfth the statements of DWs, in my opinior creates reasonable doubt, in prosecution version. 9. Therefore I allow the above appeal and set aside conviction of 'the appellant and sentences awarded to him by impugned judgment and acquit him. by giving him benefit of doubt. Bail bonds executed by appellant stand discharged (TQM) Apptal accepted