PLJ 1985 AJK 1 [FB] PLJ 1985 AJK 1 [FB] Present : abdul majeed mallick, CI ; saedar muhammad ashkaf khan & qazi abdul ghafook, JJ Miss RAKHSHANDA ASLAMPetitioner versus NOMINATION BOARD OF AZAD JAMMU & KASHMIR through its Secretary, Muzaffarabad and 2 OthersRespondents Writ Petition No, 35 (also No. 34} of 1984, decided on 9-12-1984. (i) Azad Jaramu & Kasfoiair State Subject Act, 1900
S, 5Certificate of domicileGrant ofHeid : Domicile certifi cate granted under Act being certificate of domicile for Azad Kashmir and not of any of its part or district, District Magistrate to grant same to any person residing within territory of Azad Kashmir continuously for period of last five years with intention to reside permanently in Azad Jaramo and KashmirHeld further : Applicant not to be required to be permanent resident of District to whose District Magistrate he applies for grant of certificate of domicile ncr his continuous residence in said District for period of five years prior to his making application to be needed to make him eligible for obtaining certificate under Act. [Pp. 5 &1^D & E (li) Az8d Jammu & Kashmir State Subject Act, 1980 _S. 5«-Certificate of domicileGrant ofPermanent residence of applicantEnquiry as to Held : District Magistrate not to be called upon to make any inquiry as to permanent residence of person making' application to him for grant of Domicile Certificate Applicant living in Azad Jammu & Kashmir for period of not less than five years and intending to live there permanently Held : Certificate of domicile to be granted to such applicant. fP. 1C]G (Hi) Azad .Tammn & Kashmir State Subject Act, 1986 S. 5 read with Azad Jammu & Kashmir State Subject Rules, S980 R, 7-Certificate of domicileIssuance of -~» Place of domicile. buck for fresh decision in the light of observation made in its judgment after hearing the agrutnents of the learned counsel for the parties. 6, While the writ petition of Miss Rukhshanda Aslam was pending disposal after the remand of the case by the Supreme Court, Miss Shamim AH Mallick also challenged the validity of the order of the Council, directing the District Magistrate Muzaffarabad to issue domicile certificate in favour of Miss Qhousia Bashir, oa almost similar grounds as were made the basis of attack in the earlier writ petition mentioned above, 7, W« have heard the learned counsel for the parties and have also perused the record of the case. In both the above writ petitions, the validity and legality of the order of the Council directing the District Magistrate Muzaffarabad to issue certificate of domicile to Miss Ghousia Bashir, respondent has been challenged mainly on the ground that the said respondent being a permanent resident of District Mirpur was not legally sotitled to obtain Domicile Certificate from Muzaffarabad District, 8, Irs order to appreciate the above contention it appears pertineat to reproduce the rslevant. provisions of law and tha Rules made thereunder governing the issuance of Domicile Certificates, which are respectively Section 5 of the Azad Jammu and Kashmir State Subject Act, 1980 (hereinafter referred as the Act) and Rule 7 of the Azad Jarnmu and Kashmir State Subject Rales (hereinafter referred to as the Rules) which read as under : "5. Certificate of domicile ; -The Council or any o_ther authority specified by the Council may, upon an application "made to it is the prescribed manner containing the prescribed particulars, grant a certificate of domicile to atiy person in respect of whom it is satisfied that the facts stated in the application are correct and - that the applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live permanently in Azad Jammu and Kashmir." "Rule-7. Certificate F ef domicile.(1) Any District Magistrate in Azad Jammu and Kashmir may issue a certificate of domicile in the manner prescribed below : (a) An application for a certificate of domicile shall be made in Form 'P' (Appendix-Ill) in duplicate, It shall be accompanied by an affidavit affirming the truth of the statement made in it. (b) The District Magistrate may demand such evidence as he may consider neceassary for satisfying himself that the facts stated in the application are correct and that the applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live perma nently ia Azad'Jammu and Kashmir, (2) The District Magistrate stall either reject the application or grant a certificate of domicile in Form 'X' (Appendix-IV). (3) Any person aggrieved by any order passed under sub-rule (2) may file an appeal with the Azad Government of the State of Jammu and Kashmir within thirty days and the Government may pass such order as it deems fit;" B 9. A perusal of the above provisions of the law and the Rules would show that a person is entitled to obtain a certificate of domicile from any District Magistrate of Azad Kashmir if he has been continuously residing in Azad Jamrnu and Kashmir for a period of five years and also intends to live there permanently and the District Magistrate is legally bound to grant him the said certificate on his being satisfied that such an applicant fulfils the above conditions and that the facts stated in his application are correct. A District Magistrate has no power to refuse the grant of domcile certificate to an applicant for the same who although fulfils the afore mentioned conditions but does not reside permanently in" his District or at least has not continuously resided there for a period not less than five years for the simple reason that Section 5 of the Act read with Rule 7 of the Rules made thereunder does not lay down any such condition as pre requisite for the grant of the domicile certificate. When the question of eligibility to the grant of domicile certificate from District Muzaffarabad to Miss Ghousia Bashir respondent is considered and examined in the light of the above legal position, we are left with no alternative but to hold that she, as a right, was entitled to obtain domicile certificate from the District Magistrate Muzaffarabad on her applying for grant of the same to him and the District Magistrate was under legal obligation to issue the same in her favour and by rejecting her application, he had acted unlawfully bv failing to do an act which the relevant law enjoined upon him to do. In this view of the matter, it cannot be said that the impugned order of the Azad Jammu and Kashmir Council either suffered from lack of authority or was illegal and without jurisdiction on the ground that the said respondent was not a permanent resident of Mirpur District. As stated earlier, it was not necessary for her to be a permanent resident of Muzaffarabad District for the purpose of obtaining domicile certificate from the District Magistrate of Muzaffarabad and all that was required from her was to satisfy the District Magistrate that she had been continu ously residing in Azad Kashmir for the last five years and intended to live permanently there. Both these conditions were fully satisfied in her case as it is not even disputed by the petitioners in the above writ petitions that she had not lived in Azari Kashmir for a period not less than five years previous to her making the application to the District Magistrate Muzaffarabad for the grant of domicile certificate or that she does not intend to live permanently in Azad Kashmir and have only taken excep tion to the impugned order on the ground of her being a permanent resident of District Mirpur where her father resides permanently and ownes ancestral property. 10. In view of what has been stated above, we are of the opinion that the domicile certificate granted under the Act is a certificate of domicile for Azad Kashmir and not of its any part or District and the same is to be granted to any person by any District Magistrate of the Azad Kashmir on his being satisfied that such a person has been residing in the territory of Azad Kashmir continuously for the period of last five years D with the intention to permanently reside in Azad Jammu and Kashmir and that the other particulars furnished by him in his application are correct. 11. The Division Bench of this Court in PLJ 1983 AJK 12 has also come to the conclusion that the domicile certificate granted under the Act is a domicile certificate of Azad Jammu and Kashmir and not of any particular District or place in Azad Kashmir. In the above case it was held that : - Arp. IS. "it is obvious from the provisions contained in Section 5 read with Rule- 7 , domicile certificate visualized in the said Act and the Rules, is a Domicile Certificate of Azad Jammu and Kashmir and not of a particular District or place of it and that the perusal of the prescribed Form-P contained in Appendix-Ill on which the applications for obtaining domicile certificate is to be made also shows that an applicant has to apply for obtaining domicile certificate of Azad Jammu and Kashmir and not of a particular place of it." 12. However, in the said case the Division Bench was of the further "That the place mentioned against the column 'domicile ki Jaga' in Form P-I in which the certificate of domicile is issued by the District Magistrate would indicate the place where the certificate holder is permanently settled in the Azad Jammu and Kashmir at the time of issuing the domicile certificate and it cannot be said that would merely indicate the place of resident of the person holding the certificate, even if it is temporary place of rasidence and not his permanent board or home." 13. The learned Single Judge who previousy decided the writ petition entitled 'Miss Rukshanda Aslam v. Nomination Board' sought support from the above cited decision of the Division Bench for holding that the grantee of the domicile certificate under the Act is a domicile of Azad Jammu and Kashmir and not of any particular part or District of it by referring to only the first mentioned view of the Division Bench namely that the domicile certificate visualized under the Act is a domicile certificate of the Azad Jammu and Kashmir and not of a particular District or place but did not make any reference to the view of the said Divison Bench to the effect that the place mentioned against the words 'domicile ki jaga' in form P-I would indicate the permanent place of residence of the holder of the domicile certificate and on account of this omission the Supreme Court on appeal against the said jndgment of the learned Single Judge has remanded the case back observing that the Single Judge has misconstrued the decision of the Division Bench and has directed that the said ruling of the Division Bench may be considered by the larger bench if the Single Judge holds the view different from that of the Division Bench. 14. We have thoroughly gone through the judgment of the Division Bench, reported as PLJ 1983 AJK 12 with a view to examining its cor rectness or otherwise. In the said judgment, the learned Judges comprising Division Bench have given two findings. Firstly, that the domicile certificate visualized in the Act and Rules made thereunder is a domicile certificate of the Azad Jammu and Kashmir and not of any particular District or place and its holder is a domicile of Azad Jammu and Kashmir and secondly, that the place mentioned against the column pertaining to the 'place of domicile' in Form-P-I would indicates the place where the certificate holder is permanently settled in the Azad Jammu and Kashmir at the time of issuance of the domicile certificate and this entry can be validty relied upon by the Nomination Board or any other authority while deciding the question as to the district in which the certificate holder is permanently settled. 15. In the circumstances of the present case, we are of the view, that the permanent place of resident of Miss Ghousia Bashir, respondent is not very much relevant for the decision of the writ petitions for two fold reasons. Firstly, the determination of permanent residence of the applicant for the grant of domicile certificate becomes un-necessary in view of our conclusion that neither he is required to be a permanent resident of the District to whose District Magistrate he applies for the grant of the same nor his continuous residence in the said District for a period of five years prior to his making application is needed to make him eligible for obtaining domicile certificate under the Act. Secondly, the validity of the order of the Council whereby the District Magistrate Muzaffarabad has been directed to issue domicile certificate in favour of Miss Ghousia Bashir, respondent has been made the subject of challenge in the writ petitions and not the certificate, if any, issued by the District Magistrate in persuance of the impugned order of the Council. As a matter of fact, in none of the above writ petitions such a certificate has been mentioned to have been issued by the District Magistrate nor any copy of the same has been tiled alongwith it and therefore, wheti there is nothing on the record to show that whether any domicile certificate by the District Magistrate of Muzaflfarabad has been issued in favour of the said respon dent and if issued, which place of her domicile has been shown in its (Form P-I) relevant column, the question of expressing any opinion as to whether the place of domicile shown in the domicile certifiate granted by the District Magistrate in Form P-I in favour of Miss Ghousia Bashir, respondent is her place of permanent resident or not, does not arise and expression of any such opinion becomes un-necessary. Probably for this reason the learned Single Judge who decided the writ petition of Miss Rukhshanda Aslam, petitioner did not refer to the view of the Division Bench held in its judgment mentioned above that the place mentioned against the words 'domicile ki jaga 1 indicate the place where the certificate holder is permanently settled in the Azad Jamnau and Kashmir at the time of issuance of the Domicile Certificate. 16. However, in compliance with the directions of the Supreme Court, given in the remand order that the above ruling of the Division Bench should be kept in view and its correctness or otherwise be examined by a larger bench while deciding the writ petition, we have considered the above view of the Division Bench in the light of the relevant law but find ourselves, with due defence to the opinion of the Division Bench, unable to agree with it. 17 In our view, the place mentioned against the column pertaining! to the'place of domicile'm the printed Form P I, does not denote thel place of permanent residence of the grantee of the domicile certificate!^ but it only indicate the place of her ordinary residence in Azad Jammu and Kashmir at the time of the issuance of the said certificate. It| appears pertinent here to reproduce the Form-P (.Appendix-Ill) which is the prescribed form for making an application for the grant of domicile certificate and Form P-I (Appendix-IV) in which the domicile certificate is granted by the District Magistrate. 18. The perusal of Form-P would show that the applicant for the grant of domicile certificate is required to state the place, Tehsil and District of the Azad Jaosmu and Kashmir where he/she arrived from his/ her previous residence alongwith the date of his/her arrival there. La addition to this, she/he is also required to give his/her other particulars such as married/single/widow, name of wife or husband, names of child ren and their ages, trade or occupation and the marks of identification. The domicile certificate granted by the District Magistrate in Form P-I consists of two parts. In the first part, the District Magistrate grants the certificate of domicile to the applicant after certifying that he fulfils all the conditions which are laid down under Section 5 of the Act for the grant of certificate of domicile and that he is satisfied with regard to the particulars of the grantee of the certificate given in the certificate of domicile. 19. The particulars required to be given pertaining to the grantee of the domicile certificate in the domicile certificate are exactly the same which the appl.cant for the grant of the name is required to mention in his application. Under Section 5 of the Act, the District Magistrate may grant certificate of domicile to an applicant, if he is satisfied that the particulars given by him in his application are correct and he has been continuously living in the Azad Jammu and Kashmir for a period of not less than five years with the intention to live there permanently. It is in accordance with this provision of law that a District Magistrate gives the particulars of the holder of the domicile certificate in the second part of the said certificate in Form P-I after being satisfied thai the particulars given by the applicant in his application for the grant of domicle certi ficate are correct. So the District Magistrate would be under Segal oblige tion to mention the permanent place of residence of the grantee of the domicle certificate in P I against the expression to ths effect 'place of domicle' only if the applicant for the said certificate is required to state bis place of permanent residence in his application (printed form-P) for the grant of certificate of domicile but the law under which the domicile certi ficate is granted does not require such an application to be a permanent resident of Azad Kashmir to be eligible for the grant of the domicile certificate and, as stated earlier, the only condition he is to fulfil for the purpose of securing domicile certificate is that he should have been continuously residing for a period not less than five years in the Azad Kashmir with the intention to live there permanently. Thus, when the applicant for the grant of domicile certificate needs not to be the permanent resident of the Azad Jammu and Kashmir at the time of making his application, the question of his mentioning permanent residence against the column to the effect "place of domicile" in his application given in Form P does not arise and consequently the ques tion of District Magistrate's mentioning the place of his permanent residence against the similar expression in Form P-I also becomes out of question. 20. Moreover under Section 5 of the Act, the District Magistrate is not called upon to make any inquiry as to the permanent residence of the person making application to him for the grant of Domicile Certificate and he may grant him the certificate, if he is satisfied that such a person had been living in the Azad Jammu and Kashmir for a period of not less than five years and intends to live in Azad Kashmir permanently and thus how would it be possible for the District Magistrate to mention the place of permanent residence of the person to whom he grants the domicile certificate under the said Act when he does not embark upon any such enquiry as to the permanent residence of the applicant for the grant of domicile certificate, 11. The reading of Form-P and P-I under discussion combindly makes the meaning of the expression 'place of domicile' appearing in column-lV of Form P-I The person applying for the grant of domicile certificate, to ihe District Magistrate is to mention the place of his arrival in any Tehsil and District of the Azad Jaminu and Kashmir and in our view, it is the place so mentioned by him in his application that the District Magistrate is required to state against the expression 'place of domicile' in the certificate of domicile provided, of course, he is satisfied that the statement of the applicant to that effect is correct. To make our above view clear we would like to give an example. An applicant for the grant of the domicile certificate stating Chacksawari, Tebsil and District Mirpur as his place of arrival in Azad Kashmir in his application in Form-P. the same place and District would be shown against the column to the effect 'place of domicile' in Form P-! by the District Magistrate on being satisfied about the correctness of the statement of the said applicant in that respect. 22. There is yet another reason on account of which we are inclined to hold the view that the expression 'place of domicile' under discussion do not mean the place of permanent residence. The words 'domicile' and 'permanent residence' are not synonymous and their dictionary meanings are quite different The domicile and permanent residence are two different and separate concept especially when they are considered against the context of the scheme of the Act and the Rules under which the domicile certificate is granted, 23. As held earlier, in view of the provisions of Section 5 of the Act and Rule 7 of the Rules, certificate of domicile is a certificate of domicile of Azad Jammu and Kashmir and its grantee need not to be a permanent resident of the Azad Kashmir at the time of applying for the Same, when the law does not make compulsory for the person seeking domicile certificate to be a permanent resident of Azad Kashmir at the time of his applying for the same, the contention that the place mentioned against the words-place of domicile' in the Form P-I denote place of permanent residence of the holder of the certificate of domicile does not appear to be impressive and weighty and the expression 'place of domicile cannot be interpreted to mean the place of permanent residence. The word domicile is to be construed in accordance with its primary and ordinary meaning which by no stretch of imagination, can be interpreted to mean permanent residence. A permanent residence of Azad Kashmir is a domicile of Azad Kashmir but the domicile of Azad Kashmir as contemplated by the Act is not necessarily the permanent resident of Azad Kashmir. 24. For the reasons stated above, we are of the considered view that the expression "place of domicile' appearing in Form P-I (Appendix- IV) does not mean the place of permanent residence and the place men tioned against the aforesaid expression does not denote the place of permanent residence of the grantee of the domicile certificates but his ordinary place of residence at the time of his making application for the said certificate and found to e correct to the satisfaction of the District Magistrate granting the certificate of domicile to him. 25. The learned Single Judge who previously decided the writ petition of Miss Rukshanda Aslam, petitioner was also of the view, that the said writ petition was not maintainable also on the ground that tbe decision of the same depended upon the determination of the question as to whether or not Miss Ghousia Bashir, respondent is a permanent resident of Muzaffarabad District and that the above question bemg a question of fact cannot be enquired into by the High Court in exercise of its Constitutional jurisdiction and that the proper forum for deciding the same is either the District Magistrate Muzaffarabad or the Council which have the powers to issue the domicile certificate under the Act and Rules made thereunder. However, the learned Judges of the Supreme Court while remanding the case on an appeal against the said judgment of the Single judge of the High Court has also observed that the learned Single Judge without considering the documentary evidence on the record refused to draw any conclusion on the above controvercial fact on the bhort ground that the question of facts being disputed, those cannot be probed into in exercise of its writ jurisdiction and one of the reasons for remanding the case was their above observation. So irrespective of the fact, whether any such determination on the disputed question of fact referred to above would be in any way helpful in deciding the above writ petitions, we proposed to examine the evidence led by the parties in this respect. Miss Rukhshanda Aslam, petitioner has filed with her writ petition documents Annexures B/l to B 4 in support of her contention that Miss Ghousia Bashir, respondent is not a permanent resident of Muzaffar abad District whereas the said respondent has filed documents Annexures A, B, B/l, C, C/l, D and E to rebut the above contention of the said petitioner and in support of her claim being permanent resident of Muzaffarabad District. 26. We, now propose to examine the above documents tiled by the parties with a view to determining as to whether the factum of the perma nent residence of Miss Ghousia Bashir, respondent can be decided on their basis. 27. The evidence furnished by the petitioner Miss Rukhshanda Aslam in the shape of documents Annexures B/l to B/4, only shows that the respondent Miss Ghousia Bashir had been receiving education at Mirpur and Koth Districts and living there for the last three to four years prior to htr making application for the grant of domicile certificate. Annexure B/l is a photostat copy of the certificate of Intermediate which shows that the said re-pondent had passed her Intermediate Examination held in the year 198.} from the Government Girls College Kotli. Annexure B 2 is a photostat copy of the provisional certificate from the Principal Government College Kotli certifying that the said respondent had appeared in the F. Sc. examination held by the Board of Intermediate and Secondary Education Mirpur for the year, 1983 and passed the same in first division. Annexure 8/3 is a photostat copy of the certificate from the District Health Officer Kotli showing that the said respondent was examined by him on 28-11-19X3 and found medically fit for the higher studies. Annexure B'4 is a photostat copy of the certificate of Matriculation which goes to show that the respondent under consideration passed her said examination in the year, 1982 from Mirpur. 28. Now we come to consider the documents annexed with the written statement filed by Miss Ghousia Bachir, respondent. Annexure 'A' is a copy of the certificate from the Commissioner Mangla Dam that the parents of the father of the respondent are Mangla Dam affected persons \vhereasthedocuments Annexures 'B' and 'B/l' are to the effect that Ch. Bashir Hu^sain, the father of the respondent had purchased a piece of land in Mu?affarabad in the year, 1978 and had got sanctioned the plan of the house 10 be built on it from the Municipal Committee MuzafFarabad. Annexure 'C' is a photostat copy of the certificate by the Head Mistress of the Gove;nment Girls High School Mazaffarbad that Miss Ghousia Bashir, respondent rema ned admitted in the said school from the years 1976 to 1979, Similarly, Annexure'B/l'is a certificate from the Principal Government G.rls College Muzaffarabad to the effect the said respondent joined the above Institution in the year, 1981 and after few months left it. Annex <.! re 'D' is a certificate from the Government Pilot High School MuzaffVab:>d, certifying that Nasir Bashir and Yasir Bashir sons of Ch Bashir H jssain remained students of the said School and isft the same on 5-9-1 ^1 after obtaining the Migration Certificates. 29. The evidence mentioned above ied by the parties in support of their respective contention as to the permanent residence of the respondent MiiS Ghousia Bashir is of not such a nature and substance on the basis of which it may be possible for this Court to determine the controversy between the parties with regard to the above question conclusively. The mere fact that Miss Ghousia Bashir, respondent had been studying in the Educational Institutions of Mirpur and-Kotii for about four to five years prior to her making application for the grant of domicile certificate to the District Magistrate Muzaffarabad is not sufficient and cannot be made the basis for holding that she is of permanent residence of either of the Districts in which she had been studying especially in view of the undis puted fact that her father being a Government servant was posted in the said Dis'ricts during the period the said respondent had been receiving education in the Educational Institutions of those Districts. 30. Similarly, the evidence of the said respondent that her t'ather has purchased a plot and constr icted a ruvase thereon in Muzaffarabad Town and that she had been studying and living with her father danng his post ing as a Government servant there per se is not sufficient to reach a con clusion that she is a permanent resident of Muzaffarabad District. The elaborate inquiry is needed for the determination of the permanent residence of Mis» Ghousia B ishir, respondent which ihis Court in its writ j insdiction is not in a position to embark upon and have to confine itself to the documents filed by the parties with the writ petitions and written 'statements which as held earlier do not lead to any definite conclusion Ifor a decision on the question under discussion. The proper forum for conducting such an enquiry is either the District Vfagis trate or the Council which have the powers to grant domicile certificate. 31. Even otherwise, in view of our finding that for the issuance of domicile certificate, it is not necessary for the applicant to be a permanent resident of a District from whose District Magistrate he seeks to obtain domicile certificate and a District Magistrate may grant the said certificate to any person who has been residing continuously for a period of five years"in the Azad Jamrau and Kashmir and intends to permanently live there, the determination ot" the above question in either way is not heSpfu! to any party or to the decision of the case 32. The Seamed Counsel for the petitioners have also argued that the provisions of the State Subject Act and the Rules made thereunder in respect of grant of domicile certificate are in conflict with and in derogation to the relevant provisions of I. L. 84 Council Resolution 804 of 1935 and 13-L/1889 which have been gi%'en protection under the constitution and as such the same are unlawful and of no legal effect. The above arguments proceeds on the ground that there is no concept of the domicile certificate in the said enactment which held the fieid before the passing of the State Subject Act, 1^80 We do not find any force in this contention of the learned counsel for the petitioner as there is apparently no conflict between the State Subject Act, 1883 and Rules made thereunder and the previous Saw on the subject with regard to the grant of domicile certificate. Even if it is assumed for the sake of arguments that there exist conflicting provisions with regards to the above subject in the aforesaid Saws, the provi sions of the latter Act would prevail over the previous law. 33. It has also been contended by the learned counsel for the peti tioners that the State Subject Act does not provide any provision for appeal or revision and only the Rules mads tnereunder make such a pro vision and as such the Rule making such provisions is ultra vires of the Act and thus any decision taken in pursuance thereof is without jurisdiction. This contention of the learned counsel for the petitioners is also devoid of any force. The rules have been made by the same authority which had the powers co make legislation in the matter of nationality, citizenship and domicile and not by any authority other than the one which had enacted the Act itself. Under sub-section (I) of Section 31 of the Azad Jamrau and Kashmir Interim Constitution Act, the Council shall have the exclusive powers to make law in respect of any matter in the Council legislative list set up m the Third Schedule of the Constitution and thus the above proviston of the Constitution read with item 1 of the said Schedule leaves no manner of doubt that the Council is the legislative bod^ in respect of the matters pertaining to the citizenship and domicile. In this view of the matter, Rule 10 of the Rules conferring powers on the Council to entertain any application, appeal, review or revision application and may, subject to Rule-6, cancel, suspend, invalidate, extend or revise any certificate issued under rule or may grant certificate refused by any other authority under the Rules or pass any other orderj it may deem necessary for fit, is perfectly lawful and cannot be held ultra vires of the Act or the Council. Therefore, in view of the provisions of the aforesaid Rules, the Council enjoyed the powers to pass the impugned order directing the District Magistrate to issue Domicile Certificate in favour of respondent, Miss Ghousja Bashir. 34. For the foregoing reasons, we hold that thr impugned order of the Council is perfectly lawful which does not suffer from any illegality or want of jurisdiction. As regards the worth it possesses, it is for the Nomi nation Board to give it any weight or not, keeping in view its own rules governing thi nominations of the candidates against the seats reserved in the various professional, technical and educational institutions of Pakistan for the candidates of Azad Kashmir and the refugees from Jammu and Kashmir State settled in Pakistan. We accordingly dismiss both the above writ petitions with no order as to the costs, (TQM) Petition dismissed.
PLJ 1985 AJK 15 PLJ 1985 AJK 15 Present : muhammad ak.ram khah, J Msi. SHAHEEN BEGUMPetitioner versus GHULAM MUHAMMAD BUTTNon-petitioner Criminal Revision No. 34 of 1984, decided on 27-10-1984, (i) Maintenance
ChildMaintenance ofFather-Duty ofChild remaining with moth;rHeld : Mother even if not entitled to maintenance, father to be dutv hound to maintain child Held further : Mother being entitled to keep custody of girl untii she attains puberty, father generally to have no right to demand her from mother. [P. 2!jO PLD 1954 Pesh. 13 ; Qadoori (p. 195) & Ainul Hedaya ref. (ii) Maintenance
WifeMaintenance ofHusbandDuty ofHeld: Husband to be duty bound to maintain his wifeHeld further : Wmie fixing amount of maintenance, regard to be paid to condition of husband and also to high prices pravalsnt at relevant timeIslamic Law £ Jurisprudence. [Pp. 17 & i9]A & B MuhacHmadan Law by Amir AH (Vol. II, p. 364), Aiqadoari & Ainu! Hedaya (vol. II, pp. 332 & 365) re/. (iii) Maintenance
WifeMaintenance of House ~ Provision of Held : House (building) to live in to be necessary for wife particularly in case of agreement about provision of separate house for wileIslamic Law & Jurisprudence. [P. 20]C Ainul Hedaya (Vol. II, p, 339) Qadoori (p. 194) re/, (iv) Maintenance
WifeMaintenance ofHusband agreeing at time of marriage to provide wife with houseHeld : Wife to be perfectly justified to insist upon agreementWife neither refusing to live with husband nor instituting suit for dissolution of marriageHeld ; Wife to be entitled to maintenance as well as dwelling house. [P. 22]£ Hedaya (vol. p. 401) re/. (t) Maintenance--
WifeMaintenance of Parties drifting away from limits of Allah Held : Wife being competent to bring suit for dissolution of marriage, maintenance to her not to be ordered Islamic Law & Jurisprudence, [P. 24}F (vi) Islamic Law & Jurisprudence
MaintenanceSee : Maintenance. [Pp. 17 19, 20, 22 & 24]A, B, C, D, E & F Mr, 3. A, Farooqui, Advocate for Petitioner. Raja Mumtaz Hussain Rathore, Advocate for Non-petitioner. Pats of institution : 11-6-1984. order This is a revision petition against the judgment of the learned Revenue Assistant/Magistrate 1st Class Muzaffarabad dated 28 4-1984, whereby the learned Magistrate dismissed the application of Mst. Shaheen Begum-petitioner under Section 488 Cr. P, C. finding no force in her application for maintenance, 2, The facts of the case are the following :~~ (i) That tbe petitioner moved an application under Section 488 Cr, P. C. against her husband (non-petitioner) on 25-5-1982 and alleged in her application that she was married to the non-petitioner approximately 9 years before the application and that she got 3 children two daughters and one son from her husband. She alleged that under the agreement Ex. PA her husband Ghulam Muhammad Butt promised to settle her in his own house which was to be constructed by him at Muzaffarabad and that her husband did not fulfil his promise although he built a house in Plate Muzaffarabad. (//) This application was resisted by her husband (non-petitioner) who said that the petitioner had deserted him and as such he would not pay her any maintenance unless she comes to reside with him. (///) Both the parties led their evidence before the learned Magistrate who dismissed the application vide his order dated 28-4-1984, 2. Dissatisfied with the order of the learned Magistrate dated 28-4-1984, the petitioner has come up in revision before the High Court. 3, Mr B. A. Farooqi, tbe learned counsel for the petitioner raised the following points ; (i) That the respondent is a Dispenser in the Civil Hospital Muzaffar abad whose pay is round about Rs. 10QO/- per month and as such he has to pay the maintenance not only for his wife but also for his three children who are studying in various Schools at Muzaffarabad ; {/O That he has got a house of his own at Plate Muzaffarabad which has been rented out by him to some-body ; (in) That the petitioner has not itrtituted any suit for the dissolution of marriage and she is ready to go with her husband if his house at Plate is made available to her because Ijnder the agreement Ex. PA which was executed at the time of tbe 'Nikkah' thereby the non-petitioner agreed to his house at Muzaffarabad and take her to his house under agreement; (iv) That under Muharamadan Law, he cannot refuse maintenance as regard to his three children. As far as the petitioner is concerned, the non-petitioner has alleged that she was not ready to go with her husband. This allegation on the part of the husband is wrong and he is legally bound for the maintenance of bis wife ; and 0') That the sister of the non-petitioner used to throw away some money to her as maintenance in the beginning for some months. This was the most degrading treatment meted out to her by the sister of her husband. This happened some time before the application under Section 4s8 Cr. P. C, was moved when the husband and wife were living separate and when in the beginning the husband paid her some maintenance, & As against these points, Mr. Raja Mutntaz Hussairt Rathore, the iearned counsel for the non-petitioner has raised the following points : (a) That his client Ghuiatn Muhammad Butt had of course built a house in the plats Muzaffarabad but he sold that house and that it is wrong to say that his house has been rented out to some body else. However, his contention is that the non-petitioner is ready to take her in a rented hou-e alougwith her children ; (b) That the petitioner is a »j.sU (disobedient wife) and as such she has disentitled herself for the payment of maintenance. Under the Muslim Law a woman ho refuses to live with her husband wilfully is disentitled to her maintenance : and (c) That the non-petitioner has moved an application before the District Judge for the custody of the three mioors and as such it is uot necessary for the non-petitioner to pay the maintenance for his three children, 5. Mr. B. A. Farooqi, the learned counsel for the petitioner has referred to sections 370 and 374 of Muila's Principles of Muhatntnadari Law .Pak Publishers Limited Edition of 1968) and PLD 1968 ivarachi 2S9 220), . 6. Raja Mumtaz Hussam Rathore, the learned Counsel for the nonpetitioner has cited the following authorities : PLD 1958 SC 284 (289)D ; PLD S958 Karachi 219 (220}B ; PLD 1963 Dacca 583 (s89)E & PLJ 1977 Lahore 42! (423)B 7. I have duly considered the arguments ad\unced at the Bar and have also gone through the record carefully. 8. The husband is duty bound to maintain his wife, I reproduce Syedj Amesr Ali's Muhammadau Law Page 364 Vol. //, 'The husband is legally bouod to maintain his wife and her domestic servants whether she and her servants belong to the Muslim Faith or not. "It is incumbent on the man to maintain his wife", says the Fatswai Kazi Khan, "whether she la Moslemah or non-Moslemah (lit. zimma), poor or rich whether there has been copula or not whether grown up (adult) or young, so that intercourse with her is possible". The basic book of our Fiqah is 'Aiqadoori, The relevant text o is very important. Qadoon has said : "It is Wajib for a husband to pay the maintenance of his wife whether she is a Muslins, Zimmisor Kiiabia as long as she lives in the house of her husband who shall be responsible for her food, clothes and residence", Qadoori's well known commentaries are : (a) Hadaya and (.JJs «Ju^!) (b) Al-Jauherafuii Nayyaratj Now I would like to quote the Urdu translation of Hayads known as Aiacl Hadaya Vol. // page 332 Kiiabul Talaq : In this translation of Hayada the Quranic Ayat 2:233, is referred to, which reads : "The mothers shall give suck To their offspring For two whole years, If the father desires To complete the term. But he sha'l bear the cost Of their food and clothing On equitable terms. No soul shall have A burden laid on it Greater than it can bear, No mother shaii be Treated unfairly On account of her §hild, Nor father On account of her child An heir shall be chargeable In the same way If they both decide On weaning, By mutual consent, And after due consultation, There is no blame on them. If ye decide On a foster-mother For your offspring, There is no blame on you, Provided ye pay (the mother) What ye offered,, On equitable terms, But fear Allah and know That Allah sees well What ye do, While fixing the amount of maintenance, regard is to be paid to tbe| condition of the husband and also to the high prices prevalent today. JUr quote from page 365 of the same book : "Karkhi has said that in fixing the amount of maintenance regard is to be paid to the condition of the husband and not to the position of the wife, and this is the Zahir ur-Ra\vayat (most approved doctrine) and also the doctrine of Imam Shafei. But Kbassaf has said, and so it is stated in the Hedaya, that when the condition of the husband and wife are not equal, in other words, when-one is rich and the other poor, a proper means should be adopted between the two ; and on this is the Fatwa. And the Hedaya supports its view by the hadis in the Sahihul Bokhari from 'Ayesha that on one occasion Hind, daughter of 'Otba, came and complained t the Prophet that her husband Abu Sunan was a miser, and did not support her and her child properly. The Prophet said, "take what is necessary, bat he moderate". 9. In Azad Kashmir , mostly the Muslims are Hanafia and therefore, Hanqfi law applies to the case of the parties before sue. According to the Hanafi Law, it is the duty of the husband to maintain his wife. I quote the said book from pages 353-356 : "The husband is bound to maintain his wife even if she be residing in her father's house provided he has not required her to come to his own house, and can cohabit with her there". If he has called upon her to come and live with him and she has refused without any valid or justifiable reason, such as the non-payment of prompt dower or illness, she is not entitled to maintenance while residing in her father's house. But if she is ill m her father's house and the husband wants to remove her to his house, and there is no risk or danger to her health in such remvual, and she refuses, she will not be entitled to maintenance". (The under lining is mine). It is mentioned in Ainual Hadaya VoS, II at pages 333-334 : I have been informed that a suit for the recovery of power is subjudice before the Court of the Sub Judge. 10. A wife is entitled to have a house for her living. "In fixing the amount of maintenance, the Kazi must pay regard to the position of the parties, the requirement of the wife and the dearness of provisions. And he may direct the payment to be made either daily, or by the month or by the year, as may be most convenient in the man, for a labourer earns by the day, and it may be convenient to him to pay daily. But in every case it must be in advance, though the husband may agree to pay and the wife may agree to take, the maintenance in any way he chooses. The wife is not entitled merely to maintenance in the English sense of the word, but has a right to claim a habitation for her own exclusive use, to be provided consistently with the husband's means. It is incumbent on the husband to provide a separate apart ment for his wife's habitation, to be solely and exclusively appro priated by her, because this is essentially necessary to her, and is, therefore, nor due, same as her maintenance, "and the word of God appoints her a dwelling house as well as a subsistence" (Hadaya Vol. I P-401) of Ameer Ali's Book (Underlining is mine). A house (building) to live in is also necessary for a wife. It becomes all the more necessary if there is an agreement about the provision of a separate house for a wife. I would like to quote Hadaya again : 11. Section 370 of Mulla's Principles of Muhammadaa Law referred to fay Mr. S. A Farooqi the learned Counsel for the petitioner reads as follows : Here in italics. "A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. (2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be, (3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grand-tather, provided he is m easy circumstances." 1 would like to quote from the Urdu translation of Qadoori from page 193 : It is the duty of every father to maintain his child so long that child remains a minor. Under the Muslim Law, a mother is entitled to keep the custody of the girl until she attains puberty. The father has generally got no right to demand the girl from the mother. Waile on the othet hand, he is in duty bound to maintain her even though the child remains! with the mother and even though the mother is not entitled to maintenance because she lived on her own accord (PLD 1954 Pesh. 13) It is mentoned in Hayada that the maintenance of minor children is the responsibility of their father. The translation in Ainaai Hadaya is : 12. In the case of Mst, Hamida Begam v. Syed Mashaf Hassain Shah, (PLD 1958 SC Pak. 284) a Full Bench of tne Supreme Court of Pakistan held at page 2b8 ;~~ "It would be difficult to affirm in these circumstances that ths question of the right to custody of the child is not at all germane to section 488 Criminal Procedure Code. It may very wsH have a bearing on the question whether the father had in fact neglected or refused to maintain the child or not. (2S8jA. "The provisions on section 4gg Criminal Procedure Code, however, are not intended to shut out entirely al! reference to the personal law of the parties except in matters in respect of which a ciear departure has been made from that law in the section itself. Clearly, if maintenance is claimed by the wife, the question whether the conjugal relations still subsist between the parties, is to be decided with reference to the rules of the relevant personal law" (288)B. la that case, divorce had taken place between the husband and wife tad the guardian court had decided the custody of the child m favour of the husband, The child had again joined the mother The Supreme Court of Pakistan agreed with the High Court that no refusal or neglect on the part of the father to maintain the child was proved. Section 488 Cr. P. C. was not, therefore, attracted to that case under the peculiar circumstances of that case. Therefore, that authority does not apply to the facts of this case. 13. In the case of Majida Kbatun Bibi v. Paghalu Muhammad (PLD 1963 Dacca 583), the appeal of Mst. Majida Khatun Bibi was dismissed, In that case, the plaintiff appellant had refused to return to her husband without a sufficient cause and, therefore, it was rightly held that she was not entitled to maintenance. Therefore, that case also does not apply to the facts of the present case. 14. I need not discuss the other authorities because in this case, the petitioner has not refused to live with her husband. She has not instituted a suit for the dissolution of marriage against har husbind wmea fact shows that she is not al fault I have seen the agrejrnjnt Ex.h. P. A in which the non-petitioner agreed to build a house at Plate where he promised to live alongwith her. The condition No. 4 of that agreement dated 24 4 1973 appears to have been violated by tiie non-petitioner (husband). Sne is serfectiy justified to insist upon the agreement Exh. P. A. Tbe non-pstiioner is an educated person as he is a dispenser and it cannot oe said that hs blindly signed ths agreement Exh. P. A. executed at the time of marri age that ha would provide his wife with a house. According to Hadaya Vol. If P. 401 quoted above, it is incumbent oa the husband to provide house for his wife especially when it has bean agreed upon by them. So se is bound to provids the house to her ua ler an agreement Exh. P. A. She is, therefore, entitled to the maintenance as well as a dwelling house. 15 The very first Ayat of Suraiul Maida reads : "O Muslims ! fulfil your (all obligations." According to Imam Raghab Isfahan! all kinds of contracts are ment in this Ayat Maulana Muhammad Shaft has defined such contracts in Muaref-ul- Qorn'Vol. Ill at pages 12 and 13 which may be read for further study.There is another Ayat which also deserves attention. It is 17 : 34 and rctd« :- "And fulfil every engagement For every engagement wiil be enquired into (On the Day of Reckoning)". Maulana Muhammad ShaS wrote in Muarefu! Qaraa Vol. V. at pages 467 and 468 : 16. Under these circmutances, I accept this revision pstition, set aside the order of the learned Revenue Assistant Magistrate 1st Class Muzaffarabad dated 28-4-1984 and order the uon- petitioner Mr Gtiulam Muhammad Butt to pay Rs. 500 per month as maintenance for his three children ; two daughters and one son from the date when the petitioner raoved the application under Section 488 Cr, f. C, i.e. from 25-5-1982, 17. I have not ordered for the maintenance of Mst, Shabeen Begum ^"because the parties are drifting away from the limits of Allah and sbe may bring a suit for the dissolution of her marriage, 18. Before I part with this case, 1 would like to mention that : (a) According to an amendment effected on 2ist of October, !983, the words "Four hundred" have been substituted for the words ; 'one hundred" in subsection (1) of Section 488 Cr. P. C. and, therefore, the old law is aot applicable to this case, (l>) Before passing this order, I called for the parties ; the husband and the wife both and asked them to sit together and sorte compromise could be affected between the spouses, Mr B. A. Farooqi, Advocate also remained with them for some time. Mr. B A, Farooqi Advocate then left the husband and the wife to talk alone. The petitioner and the nonpetitioner remained together for about two hours, talked together but could not come to terms. It was after this failure of compromise on the part of the parties, that I pass this order. (c) The question as regards to the custody of minors in subjudice be fore the learned District Judge. This order shall be effective till the question of the custody of minors is finally decided and shall stand modi fied by the order passed in respsct of the custody of the minors, (TQM) Order accordingly.
PLJ 1985 AJK 24 Present : ABDUL MAIBEO MALLICKS CJ PLJ 1985 AJK 24 Present : abdul maibeo mallick s CJ MUHAMMAD SHAFlPetitioner Versus MUHAMMAD NAJIB and AnotherRespondents Civil Revision No. 29 of 1984, decided on 16-1-1985, (I) ClTii Procedure Code (V of 1908)
O. XLI, R. 27Additional evidenceProduction of at appellate stageHeld : Courts to be very slow to allow additional evidence at appeal stageWhile granting permission for additional evidence, care always to be taken to guard against admission of fabricated documentsHeld further : Additional evidence sought to be produceeed where genuine and cot available as trial stage or not in. ledge of party, court to allow such evidence to be admitted. [P. 21]A (ii) Civil Procedure Code (V o f 1908) -O, XLI, R, 27Additional evidenceProduction of at appellate stageDocument sought to be produced at earliest stage though in knowledge of party, omission in its production occurring due to negligence and failure of trial courtHeld: Such document to be allowed to be produced as additional evidence. [Pp. 27 & 28 }B & C Mr. M. Y. Arvi, Advocate for Petitioner. Mr. Muhammad Riaz Akhiar, Advocate for Respondents. Date of Institution : S1-12-1984. judgment The petition is addressed against an order of the learned District Judge, Mirpur, passed on 25th November, 1984, whereby prayer for pro duction of register of Muhammad Abdullah, petition-writer, relevant to the point at issue, was declined. 2. Muhammad Shafi, petitioner acquired allotment of plot Mo. 119, measuring 16 mar/as, situate in Mangla Hamlet. Subsequently, the plot was transferred by the petitioner to Muhammad Najib, respondent No. 1, for a sum of Rs. 2,000, through an affidavit executed on 30th October, 1977. On the same day, a power of attorney was also executed by the petitioner in favour of Abdul Aziz, respondent No. 2. On acquisition of possession of the plot, respondents constructed one or two rooms over it. As the respondents claimed alienation of entire plot, the petitioner agitated the claim of the respondents, by institution of a suit for possession of half of the plot, by virtue of his title of allotment. It was averred that plaintiff- petitioner transferred 8 marlas i.e. half of the plot, to Muhammad Ndjib, respondent, through an affidavit but, according to his knowledge, the defendant, due to connivance with the petitioner-writer, manoeuvred entry of entire plot in the affidavit. The plaintiff sought declaration in the manner of rectification of power of attorney and possession of half of the plot in his favour. The suit was instituted on 2nd August, 1978. The opposite party resisted the suit by repudiation of the claim of the plaintiff. The trial Court dismissed the suit for want of proof. The plaintiff-petitioner, feeling dis-satisfied with the finding of the trial Court, preferred an appeal before the District Judge. During the pendency of appeal, an appli cation was moved for permission of production of register of the petitionwriter, copy of which was already admitted in evidence as Exh. PA/1. The original register was sought to be summoned in presence of rejection of evidence consisting of copy Exh. PA/1 by the trial Court, for want of its proof by comparison with the original register. The learned District Judge was not impressed by the request, as such, it was declined. 3. The objection to the production of register, on behalf of the respondents, is that at appeal stage production of register tantamount to additional evidence which is not permissible under the provisions of Order 41, Rule 27, CPC. It was emphasized on behalf of the respondents that the petitioner who failed to get the regi»ter summoned at the time of evidence in the trial Court, should not be allowed to remove the lacuna at appeal stage. Reference was made to [PLJ 1979 AJK (SC) 27], PLJ 1979 Lahore ( Bahawalpur ) 631 and 1979 C, L. C. 533. 4. Rule 27 of Order 41, CPC postulates that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or docu mentary, in the appellate Court, provided : (a) the Court from whose decree the appeal was preferred, refused to admit evidence which ought to have been admitted ; or (b) the appellate Court required any document to be produced or any witness to be examined to enable if to pronounce the judgment, or for any other substantial cause. In presence of either of the conditions listed in categories (a) and (b), the appellate Court was empowered to allow such evidence or document to be produced or witness to be examined. To test the application of the pro vision of Rule 27, it is imperative to list the factual aspect of the case. Issues were framed on 4th February, 1979 when the plaintiff was directed to lead his evidence, on llth March, 1979. The plaintiff petitioner obtained copy of the entry of affidavit (deed of transfer of plot) on 17th February, 1979. On 14th February, an application was moved for summoning of the register from the judicial record-room and the application for issuance of attested copy of the same was also moved on the same day. The Presiding Officer ordered the issuance of copy and also summoned the record-keeper for production of relevant register. Here, it may be stated that Muhammad Abdullah, petition-writer, scribe of the affidavit and power of attorney, at the time of evidence was already dead. In consequence of direction of the Court, the record-keeper appeared on various dates who ultimately disclosed that he was not in possession of the register. On this, a copy of the document which was duly attested by the Sub Judge, who was Incharge of the copying branch, was allowed to be admitted in evidence by its tender by the Counsel for the plaintiff, on 13th February, 1983. No objection to the admission of this evidence was raised at the relevant time. In addi tion to the application referred to above, on 7th January, 1984, another application for summoning of the register was moved by the plaintiff. It appears that the Presiding Officer failed to take action on this application. The factual picture of the case, therefore, sug gests that the plaintiff took all reasonable steps right in time, to seek pro duction of the register, as evidence in support of his claim. At appellate stage the necessity to renew the request for production of register emanated in view of the finding of the trial Court whereby the attested copy of the register Exh. PA/1 was rejected for want of its comparison with the original register. We have already reviewed that provisions of Rule 27 and found that additional evidence at appeal stage was not permissible provided the appellate Court was satisfied that such evidence was refused by the trial Court or it was necessary to enable it to pronounce the judgment or for any other substantial cause. Irrespective of the fact whether production of register would make material difference in the ultimate conclusion, it is just and reasanable to believe that the request of the petitioner is genuine and well founded. It is so as the trial Court which was moved at the earliest for summoning of the register, despite the fact that a copy of the entries in the register was issued by the Presiding Officer, in his other capa city, failed to secure production of register. At this stage, it may be stated that for my own satisfaction of the genuine cause of the petitioner, I sent for the registrar and examined the relevant entries. The register was found in the custody of son of the deceased petition-writer. The relevant entries are identical to the undisputed entries in the register and are found to have been made by the petition-writer in his own hand. Therefore, failure of the Presiding Officer to secure the production of register cannot be a cause of punishment to the plaintiff. 5. Courts strictly adhere to the rule postulated under Rule 27 of Order 41, CPC and are very slow to allow additional evidence at appeal stage. While granting permission for additional evidence, care is always taken to guard against admission of fabricated documents. It is only on the satisfaction that additional evidence sought to be produced, was genuine and was not available at the trial stage or was not in the knowledge of party, seeking to lead such evidence or was beyond its control, that addi tional evidence is allowed to be admitted. Here in the case, it is noticed that the document sought to be produced, undoubtedly, was in the know ledge of the party and the same was sought to be produced at the earliest stage, but the omission in its production nccurred due to negligence and failure of the trial Court. For in case the register was not found in the judicial record-room, the same could have been procured from the custody of the petition-writer or in case of his death, from the custody of his son. This was obviously not done by the trial Court in time. 6. In an identical situation, the learned Judges of the Allahabad High Court (AIR 1933 All. 104), allowed production of documentary additional evidence on the satisfaction of affidavit that the document could not be discovered at 'he earliest stage. The present petition is fairly better as the attested copy of the document was already produced and admitted in evidence at the stage of trial. In AIR i936 Patna 631, the ca^e was reman ded to get the document admitted in evidence where the document in pos session of Court could not be admitted in evidence at trial stage, as the trial Court refused to help the party for producing the ocument. In AIR 1928 Patna 64, where incorrect certified copy of deposition was admitted in evidence by the trial Court, was allowed to be replaced by admission of another correct certified copy at appeal stage. In AIR 1958 Patna 63, the appellant was allowed production of power of attorney as additional evidence at appeal stage, on acceptance of explanation that the power of attorney could not be produced at the trial stage, as the same was in pos sessions of other attorney who had died and despite search made by the son of the deceased, the document could not be found and it was only found out during the pendency of the appeal. It was held that the docu ment should be admitted as additional evidence to enable the Court to pronounce the judgment in the case. In AIR 1949 East Punjab 138, the objection against the order of the District Judge for admitting additional evidence, was over ruled, on the ground that the exhibit being already on record, admission of additional documentary evidence relevant to the exhibit was not a wrong exercise of jurisdiction. An idential view was expressed in AlR 1943 Allahabad 184. In the present case, an attested copy of the register sought to be produced as additional evidence is already exhibited as Exh. PA/1. Therefore, summoning of original register is not a wrong exercise of judicial discretion. The case-law cited by Mr. Riaz Akhtar, the learned Counsel for the respondents, is not helpful to the case, in view of the distinguishable factual position in those cases. The rule of additional evidence enunciated by the Supreme Court of Azad Jammu and Kashmir [PLJ 1979 AJK (SC) 27] and in Abdul Aziz's case [PLJ 1979Lahore (Bahawalpur) 631 as well as in War« All's cate (1979 C. L. C. 533), is well acknowledged and there is no second view about it. Nevertheless, the rule is not applicable to the proposition in hand, on account of its peculiar facts. 7, For the reasons listed above, I feel inclined to allow the petition Jwith the direction that the register shall be allowed to be produced as CJadditional evidence. Parties are directed to appear before the learned Dis- Strict Judge, Mirpur, on 3rd February, 1985. (SHR) Petition allowed.
PLJ 1985 AJK 31 PLJ 1985 AJK 31 Prestnt : abdul majefd mallick, CJ NAZIR DAD KHANAppellant versus QAMAR AFTAB and 4 OthersRespondents Civil Appeal No 4 of 1984, decided on 12-12-1984 . (i) Civil Procedure Code (V of 1908)
O. XLI, R. 23 & O. XLII1, R. 1 (u)Appellate Court-Order of remand byChallenge toAppeal- Competency ofDistrict Judge reversing finding of subordinate court as (a) whole and directing it to record fresh decisionHeld : Such order passed in light of provisions of Rule 23 of O, XLI, C. P. C. to be appealable under O. XLIII, R. 1 (u). [P. 34]A (ii) Civil Procedure Code (V of 1908)-
O. XXXII, R. 3Minor -Suit againstGuardian ad litem
Ap pointment ofDecree against minorEffect ofHeld : In absence of objection to legal character of appointment of guardian adlitem or fraud, collusion or gross negligence of guardian, decree passed against minor not to be denied to take its effectNo case of illegal or irregular appointment of guardian ad litem or fraud, collusion or gross negligence of such guardian made outHeld : In absence of such objection and proved facts in support thereof, decree passed against minors not to be set aside.
[P, 35]B
AIR 1916 All. 353 ; AIR 1921 All. 393 ; AIR 1924
Mad.
763 ; AIR 1958
All 437 ; PLD 1954 Dae. 69 : PLD 1962 Pesh. 171 ; PLD 1963 BJ 30 & 1968 SCMR 991 ref.
(Hi) Civil Procedure
Code (V of 1908}
O. XXXII, R. 3Guardian ad-litem
Irregular appointment of Effect of Held : In case of irregular appointment of guardian ad-litem, such irregularity being curable, presence of irregularity by itself not to be sufficient to set aside decree against minor Held further : In absence of any fraud, collusion and prejudice, decree passed against minor well represented by guardian aalitem not to be set aside. [P. 36]C
-Raja Muhammad As/am Khan, Advocate for
Appellant.
Mr. A/eemuddin, Advocate, for Respondents 1 and 2, Date of Institution :
4-3-1984.
judgment
The appeal is preferred against the order of the learned District Judge, Kotli, dated 28th February, 1984, whereupon acceptance of appeal of the respondents, finding of the subordinate Court was reversed and the case was remanded for fresh decision.
2.
Qamar Aftab and his brothers purchased the suit land from Said
Muhammad and others, vendors, through a reglstared sale-deed, dated 6 th
May, 1975.
Nazir
Dad. plaintiff appellant pre-empted the sale as an owner of the
Mahal, wherein the land in suit is situate.
The trial
Court decreed the suit on 1st
March, 1982.
On appeal, the learned
District
Judge reversed the finding of the trial
Court and remanded the case for fresh decision after recording evidence of the vendee-respondents.
3.
The resent appeal raises a controversy as to whether an order of remand is appealable or not as well as the proceedings recorded by the trial
Court, whether were illegal for want of evidence of Patwari and
Office
Qanungo.
4.
The suit land was purchased by Muhammad Hussain, in favour of
Qamar Aftab, Zahoor Ahmed, Mummad
Saleem, Muhammad
Fayyaz and
Muhammad Farvad. his seas. The corssideration was paid by Muhammad
Hussain before the Sub-Registrar od behaJf of the vendees. In the pleadings, the vendeeb were not entered as minors, therefore, the suit was instituted without a next friend.
However, when it was brought to the notice of the
Court that the vendees were minors, a guardian ad-litem of the minorswas appoimsd by the irUl Court, firstly on 28th September ar»d secondly on 7th November.
Iv" 5
^ Oh Abdul Karim, Advocate, guardian ad-litens contested the suh G'i behalf of ihe tr.inors \vifn the assistance of
Muhammad HussaM:, their fail'?;, On coocsuskm!
o( the evidence of the plaintiff-pre eaiptor. a i;st of the witnesses
>' the defendant respondents, including
;h nKnifi of local Patwar? and Office Qanungo, was furnished.
Munsbi
Si'iu
Muhammad, iotai Paiwan. appeared h; the Court on l^'.'i
Feb'uars.
I9"f a-onpwjth she record. His statement was recorded bu t
-hs inquiry rf the
Seamed Counsel for the defendants, the witness disclosed ihai he was nrt n pi'-w»:-.;,;ri uf )he register
Khasra
Girdawan, On this, the learned
Counsel made a request for adjournment of the ,,-ase so that the witness may produce register of
Khasra
Girdawar:, Subsequently, his evidence could not He recorded despite the fact that he appeared on various dates. Likewiie, Office Qar.ungo appeared on varsou daim. H'S evidence could not be recorded as bs was not m possession of ifes reievaot record. Th'js, the evidence of the Office Qanucgo was closed on IftCn
March, 1982, Muhammad Hussair., father of the minor defendants.
appeared as a witness on 28iSi December. In addition to hrs oral testimony. be produced the sale deed, £x. DA,'', copies of the
Jamabandi, Er>.
Da '
DA,'/, copies of
Khasm OirJavari, Ex, DA/4, DA/5, DA/6 and DA/'' wh^!
evidence of fbe defendaot-veadses was closed »:;d the cse was. adjourned for svidescf of the plaicisS in rebuttal, Oo conciusion of evidence oi' the parlies, Ihe trial Court decreed She su
PLJ 1985 AJK 38 PLJ 1985 AJK 38 Present : abdul ghafoor, J ,\ffr ALAM KHAM Appellant versus SHER ALAM and 7 Otheis Respondents Civil Appeal No, 12 of 1084. decided on 7-1-1985. (i) Azad Jantmu & Kasamir Right of Prior Purchase Act ~S. 6 Pre-emption Right of Sale Meaning of Held ; Term 'sale" having neither been defined in Act nor definition of "sale"" given in S, 54 of Transfer of Property Act, 1882 (IV of 1882) having been adopted, its ordinary dictionary meaning ("exchange of com modity for money") to be applied Held further : Oral saie and com promise on receipt of money whereby '"vendors" divested themselves of their all rights in land to constitute "sale" (within meaning of Right of Prior Purchase Act). [P. 42JC (ii) Azad Jtairoa & Kashmir Sight of Prior Purchase Act ~ -- S, 29 read with Limitation Act. 1908 (IX of (908) Arts. 10&120 Pre-emption - Suit for- Limitation Appellant admittedly in posses sion of suit land long before date 'of passing of decree in his favour Held : Land having not been sold through registered deed, provi sions of S. 29 of Prior Purchase Act and Art. 10 of Limitation Act not to be made applicable Hdd farther Residuary Art, 120 of Limitation Ac? to apply in such cas:. [P. 41 j^ & B 1 1)74 SCMR 425 & PLD I96" 7 Pesh. !66 re/. (ill) Limitation ,-vcf, 1908 ( IX of
Arts. 10 A; 1 20 Se«~ A/ad Jdmrnu & Kashmir Right of Prior Purchase Act S. 29. [P, 4i\A ffi. Abdul A:ii, Advocate iV-r Appeikuu. Raja Shsr Muhdmm;i'J Khan, Advocate for ReipouUenu. Date of fnsfitutjon : 20-3-1984. This is da ur-pcrti agani;>t the jucignieiu ai'd dcciee of the Additioiiii! District Judge Pootic h fBagh), dated 3rd of March, !984, whereby the decree passed by the learned Sub Judge Bagh ou 29th of April, 1981. was confirraed, 2, The brief .'acts which gave rise jo this appeal are that Sher Alarn and others respondents filed a suit tor pre-emption against the appellant for the land measuring 19 ktnals and six mar I as comprising survey Mo. 293 situate in village Jegiari. It was stated in the plaint that Mir A lam Khan, appellant (defendant No. 1) brought a declaratory suit against Jang Khan, and others on 28th of May. 1963 to the effect thai land measuring 19 kanah and six marlas, comprising survey No. 293, situate in village Jaglari was purchased by him through au oral sale in the year 1950 and a decree to that effect may be passed against the defendants" who refuse to accept this fact. During the pendent} nf the suit, defendants Jang Khan. Nikka Khan and Balor Khan filed compromise deeds whereby the right of Mir Alain Khan was accepted. Ali Muhammad, defendant was proceeded-: e.v pane, whereas a decree against Reshant Khan was passed on l?th ot August. i%5 on merits. 3. Sher ASani Khan and others, respondent filed a .suit for pre-emption on 17th August. 1971 against the appellant and stated (hat the defendantappellant actually purchased this iand but in order to defeat their rights o) pre-emption, got a fake decree on 17th August. 1965. In fact, it was an outright sale and the land was sold for a sum of Rs. 500. They are the collat'eials of the vendors, Jang Khan and others and are entitled to pre empt this sale, therefore, a decree 1-11 the basis of right <>f prior purchase may be granted in their fa\our. 4. Defendant-appellant denied the claim of the plaintiff-respondent;. and prayed for the dismissal of the suit through his written statement dated 9th of December, 1973 5. The learned Sub Judge settled the issues and after recording the evidence and hearing the par!.,,,,, decreed the suit on payment ol Rs. 1800 through his order dated 29th of April, 1981. 6. The defendant-appellant feeling aggrieved of the decree of the learned Sub Judge, went in appeal to the Court of Additional District Judge Pooneh (Bagh) who, through his order dated 3rd of March, i984, upheld the decree sought to be impeached and this decree of the learned Additional District Judge is the subject matter of the present appeal. 7. The learned Counsel for the appellant assailed the decree appealed against on the following grounds : (/') that the appellant got the suit land through a decree and it was wrong to say that the transaction was in fact a sale : and (it) that the suit w-as not brought within the prescribed period of limi tation. 8 tw
?'ne'J Connte' ! i Utfc, ' \ ^ ipaii tii )ral s l< let , , i ^ > , U.e i ?f pj i ,- i p ,1 d (. (Uci i .! r 1 ''/" t . s .> i v\ .ur^ 1 r ^ lit 10, The learned Counsel for the respondents on the c-thet hand,, con troverted the stand taken by the appellant and stated that the defendantappellant in para, 3 of his written statement admitted she transaction to be a sale, therefore, it does not he in hi^ mouth to sa\ at this stage and deny the real character of the transaction. He referred to the phraseology used in para, 3 of the written statement wherein the appellant defendant stated. She purchased the ii'nd for a sum of Rs 500 h ! ;t ni'-w hc prices of the lands have gone up and in the vear I%5, the prve of ,uu> kana! of- land is more chan 300 per kan-i! and uow at this tm;;, the market value jk more than Rs, 300 per ko.iaf. 'herefore, he paid Rs. 100 to N'kka Khan and fang Khai: and Rs, 500 to BaJor Ki^n, th-.is, he ha- paldRs. i300 as price of the Sand," Elaborats:!^ his point of vie-,', he ^tated th.it the defendant-appellant 'ansu.ip-, ha- adiriitted the trans;icii^i; to he 14. The second objection of the learned Counsel is based on the poim of limitation. Section 29 of the Prior Purchase Act prescribes one year period for filing the suit for pre-emption when purchaser takes under the sale sought to be impeached physical possession of the whole of the property sold or when subject-matter of the sale does not admit physical possession, when the instrument of sale is registered. 15. The provisions of Section 29 of the aforesaid Act and Article 10 of the Limitation Act can only be invoked in acase when the purchaser under the sale, takes physical possession of the property sold or when the sale deed is registered. In the instant case, the appellant was admittedly in possession of the suit land long before the year 1965 and the land was not sold through a registered deed, therefore, the provisions of Section 29 of the Prior Purchase Act and Article 10 of the Limitation Act cannot be made applicable to this case. It is almost settled that the provisions of Section 29 of the Act andj Article 10 of the Limitation Act are exhaustive, therefore, the residuary Article 120 of the Act is applicable in such case of pre-emption, as was held' in a case reported in 1974 S. C. M. R. 425 ; the relevant observations are reproduced below : "The seventeen sale deeds being un-registered, the suit was no governed by Article 10 of the Lim itation Act. 1908. Similarly Section 31 of the N. W. F. P. Pre-emption Act, did not apply be cause the sale being that of a house, no mutation was sanctioned and it was found by the Court below that it was not proved that the petitioner as vendee entered into possession of the house under sale in his favour. Such being the case, the suit will fall under the residuary Article 120 for which the limitation is six years." In P. L. D. 1967 Peshawar 166, it was held as under : "Where such a property is sold by unregistered deed the transac tion is not covered by either Article 10 of the Limitation Act, 1908 nor by Section 31 of'the N. W. F. P, Pre-emption Act, [950. The relevant provisions of law applicable in such case is Article 120 of the Limitation Act. 1908 which prescribes a period of six years." 1, therefore, hold that in the present case, the residuary Article ! 20 of the Act would be applicable and the period for filing the suit in this case would be six years and not one year as was claimed by the learned Counsel for the appellant. 16. Now the point which is required to be considered is as to on which date, the time of limitation would start running for filing the suit for pre emption. 17. The Courts below have held that the time for filing this suit shall stare running from the date of the decree Le. from 17th August, 1965 as according to tnem, the decree constituted the sale, whereas I have held that the sale of the rights has taken place on 30th of October, 1963 when Balor Khan and others finally alienated their rights in favour of Mir Alam Kean Therefore, it is required to be investigated whether the divestment of the rights took place from the date of the oral sale and the compromise deeds or from the date of the decree, whereby the right acquired on account of oral sale and by way of compromise were formally d^ciarecj by the learned, Sub Judge Bagh and iqcorpor ated in the decree. 17. The term "sale" has neither been defined in Prior Purchase Act nor the definition of the "sale" given in Section 54 of the Transfer of Pro perty Act has been adapted, therefore, .its ordinary dictionary meanings 'exchange of commodity for money" will have to be applied here. In such a case, the oral sale and the compromise whereby Balor Khan, Jang Khan and Nikka Khan, on receipt of money executed compromise deed and divested them of their all rights in the land, constitute, "sale" because the right of ownership of the Sand when divested from Balor Khan and others immediately shall vest in Mir Alam Khan as it cannot remain in the air _^or about one year and 9 months when the learned Sub Judge formally incor porated it into the decree. 18. The point, whether the sale takes place from the date when the parties settled their terms or when on the basis of such terms, a decree is passed by the Court, came under consideration by the learned Judges of the Lahore High Court in a case reported in A. I. R. 1919 Lahore 79 and it was held :- "When the validity of a sale is questioned and is finally declared by a decree of Court, limitation for a suit in respect of the sale begins to run from the date of the sale, and not from the date of the decree declaring its validity." 19. The same question came under consideration before the Lahore High Court and in a case reported in P.L.D. 1969 Lahore 71, it was held that : "Mutation, not an ingredient or incident of saleOral sale of agricultural land on payment of price and delivery of possession effected in 1951 Mutation at time, however, refused on vendors' refusal to accept liability to pay agricultural income-tax in respect of land Subsequently change in law relating to such tax and mutation sanctioned in 1956 Suit for pre-emption, therefore, filed in 1957 in respect of land Period of limitation for filing suit, in circumstances, held governed by S 30 of Act I of 1913 and period computed from date of oral sale and delivery of possession in 1951 and not from date of mutation effected in 1956." 20. Again, the B. J. High Court in a case reported in P. L. D. 1961 B. J. 34 considered this point and it was held that : " Sale of land shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the revenue records was sanctioned about it. Title in the properly passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the revenue records." 21. As I have already held that the sale was completed on or before the 30th October, 1963, therefore, the suit which was brought on 17 th August, 1971, after the expiry of six years, is barred by time and it was liable to be dismissed. 22. Keeping in view the above observations, I hereby accept this appeal, set aside the judgments aad decrees passed by the Courts below and dismiss the suit with no orders as to costs. (SHR) Appeal accented.
PLJ 1985 AJK 43 PLJ 1985 AJK 43 Present : abdul ghafoor, J MUHAMMAD ILYAS and OthersPetitioners versus MUHAMMAD YASlN-Respondent Civil Revision No. 2 of 1984 (also Nos, 11, 12, 13, 15, 17 & 28 of 1984). decided on 27-3-1985. (i) Civil Procedure Code, 1908 (V of 1908)
S. 115RevisionCompetency ofNo appeal provided against orders impugned before High CourtSuch court also vested with power pass appropriate orders in case under its superintending jurisdiction Held : Revision petition to be competent. [P. :o] (ii) Civil Procedure Code, 1908 (V of 1908)
O. XX, Rr 1 & 6 and S. 33Judgment Pronouncement of DecreeTerms imposed inHeld : Court to express themselves in very explicit terms while recording judgments and decreesHeld further : Terms imposed indecrse must not be so harsh as to create difficulties for parties or to make its execution impossible. [P. 5Q]B (Hi) Civil Procedure Code, 1908 (V of 1908)
O. XX, R. 14 & S. 115Pre-emption suitDecree inLower Court (ailing to comply with provisions of O. XX, R. 14 CPC in recording decree in pre-emption suitHeld : It being incumbent upon trial court to record judgment and to clearly lay down terms of decree to be complied with, revision against decree to bs accepted (and case to be remanded to trial court) with direction to record terms of decree (in accordance with provisions of O. XX, R. 14 of CPC). [Pp. 50 & 51]C, D & E Ch.-Alimuddin, Advocate for Petitioner (in C. R. 2 of 1984). Ch. Abdul Karim, Advocate for Petitioner (in C. R. 15 of 1984), Mr. Sharif Ahmed Chughtai, Advocate for Petitioner (in C. R. 17 of 1984), Ch. Muhammad Hussain, Advocate for Respondent (in C. R. 2 of 1984). Date of Institution : (C. R. 2 of 1984) 4-10-1984. judgment Al! the above titled revision petitions arise out of the following circum stances : (i) Through revision petition No. 2 of 1984, Muhammad Ilyas and others challenged an order dated 2nd April, 1984, passed by Sub Judge Sehnsa, whereby their application for extension of time to deposit the decretal amount which they failed to deposit in time on account of ambiguous character of the decree, was rejected ; (ii) Muhammad Ilyas and others, through revision petition No. Ii of 1984. sought vacation of decree dated 30th January, 1984, whereby their separately instituted preemption suit against sale, dated 20th August, 1980, which, after consolidation, was decided alongwith other suits by a single judgment and time to deposit the decretal amount to each of the plaintiff-decree-holders, was not specifically and sufficiently given, was turned down ; (//'/") Muhammad Ilyas and others, through revision petition No. 12 of 1984, challenged the order dated 2nd of April, 1984, of the Sub Judge Sehnsa, whereby application moved by the same petitioners for amendment of decree dated 30th January, 1984, to the effect that when Mst. Zarina Begum and others, decree-holders-, failed to deposit their share of pre-emption money, how much amount and which of the rest of the plaintiff-decree-holders were entitled to deposit, was rejected ; (/v) Through revision petition No. 13 of 1984, Muhammad Ilyas and others sought reversal of the order passed by Sub Judge Sehnsa, on 2nd April, 1984, whereby their application for extension of time to deposit the decretal amount till the decision of their application for amendment of decree dated 30th of January, 1984, was disposed of, was turned down ; (v) Muhammad Ayub and others, through revision petition No. 15 of 1984, impeached the order of Sub Judge Sehnsa, dated 2nd April, 1984, whereby their application for permission to deposit threefourth share of the pre-emption money which, according to the terms and conditions of the decree, fell to the share of Muhammad Ilyas and others who failed to deposit it in time, was rejected ; (v/) Jan Muhammad, vendee-judgment-debtor, through revision petition No. 17 of 1984, challenged the orders of Sub Judge Sehnsa, dated 2nd April, 1984, and 23rd April, 1984, whereby on deposit of Rs. 41,906 by Muhammad Ayub and Rs. 125718 by Muhammad Yasin the decree dated 30th January. 1984, was made final ; and (v/i) Muhammad Yasin, plaintiff-decree-holder, through revision petition No. 28 of 1984, called" in question the order dated 23rd April, 1984, passed by Sub Judge Sehns.,, whereby he was directed to pay threefourth share of decretal amount, instead of full decretal amount, was rejected. 2. Briefly the facts which gave rise to the present revision petitions are that Muhammad Yasin son of Diwan Alt, filed a suit for pre-emption on 28th March. 1981, to the effect that a piece of land measuring 30 kanals com prising survey numbers 9 and 9/1, situate in village Bhrand Tehsil Sehnsa District Kotli, alongwith the share of 'Sham!at\ the trees standing thereon and two houses, was sold by Fazal Dad and others in favour of Jan Muhammad through sale deed dated 8th August, 1980 for an ostensible con sideration of Rs. 361500 and he, being an heir of the vendor and owner of the land, adjacent to the land sold, was entitled to pre-empt the same. Jan Muhammad, defendant, through his written, statement dated 14th April, 1984, denied the claim of the plaintiff and claimed improvements to the tune of Rs. 10,000. 3, Muhammad Ilyas, Muhammad Sshaque sons and Mst. Mir Jan. wife of Muhammad Y«saf, Mst. Zarina, wife of Ismail and Mst. Munir wife of Muhammad Idrees, also filed a suit on 24th August, 198i to pre empt the above-mentioned sale. Thy claimed that Muhammad liyas and Muhammad Ishaque and Mst. Mir Jan are the sons and wife of Muhammad Yusuf, whereas Mst. Zarina is wife of Ismail and Mst. Munir Jan is the wife of Muhammad Idrees, vendor, therefore, they enjoy the right of prior pur chase and prayed for grant of decree for possession of the property sold. Jan Muhammad, vendee-defendant, denied the claim and pleaded waiver. 4. Muhammad Ayub, Dawood, Muhammad Qasim, Latif and Ibrahim sons of Fazal Dad also filed a suit on 24th August, 1981, to pre-empt the aforesaid sale and claimed that they were sons of Fazal Dad, vendor and the nephews of Muhammad Yusuf, Ismail and Idrees, vendors and were entitled to pre-empt it. Jan Muhammad, defendant denied the right of the plaintiffs through his written statement dated 2nd November, 1982. 5. The learned Sub Judge consolidated all the three suits on 5th July, 1981 and framed the issues on 1st November, 1981. The case was fixed for the evidence when on 21st November, 1983. Jan Muhammad, vendee through a compromise deed, admitted the right of prior purchase of all the three plaintiffs and the plaintiffs in turn, accepted that the land was sold for a sum of Rs. 161500 and stated that they were ready to make the payment, 6. Fazal Dad Khan, Advocate for Muhammad Ayub and others, made a statement to the effect that Muhammad Ayub and others were the heirs of Fazal Dad, vendor and were entitled to pre-empt the property in dispute to the extent of the share of Fazal Dad, whereas Muhammad Ilyas and others, plaintiffs were the heirs of the rest of the vendors and were entitled to pre empt the sale to the extent of their shares, hence, the decree may be granted in their favour. In both the suits, rights of pre-emption of the plaintiffs were superior to the right of Muhanynad Yasin, plaintiff and a decree in favour/ of Muhammad Yasin may be passed in the alternative. 7. Sardar Muhammad Hanif Khan, Advocate tor Muhammad Ilyas and others made a statement that Muhammad Ishaque and Mir Jan were the heirs of Muhammad Yusuf, Mst. Zarina was the heir of Ismail and Mst. Munir Jan was the heir of Muhammad Idress, therefore, Ilyas. Ishaque and Mir Jan were entitled to pre-empt the suit property to the extent of the share of Muhammad Yusuf and Mst. Zarina was entitled to pre-empt the property upto the extent of Ismail's share whereas Mst. Munir Jan was entitled to pre-empt the property to the extent of the share of Muhammad Idrees, vendor. Muhammad Ayub and others were the sons of Fazal Dad vendor and were entitled to pre-empt the sale upto the extent of his share. 8. Mr. Nisar Hussain, Advocate for Muhammad Yasin, admitted the right of prior purchase of Muhammad Ilyas and others and Muhammad Ayub and others and stated that the decree, on the basis of right of prior purchase, might be passed in their favour, but in case, they failed tq comply with the terms and conditions of the decree granted in their favour, a decree in favour of Muhammad Yasin might be granted. 9. Mr. Rafiullah Khan, Advocate for Jan Muhammad, vendee, accep ted the right of prior purchase of all the three plaintiffs and the learned Sub Judge, through his order dated 30th January, 1984, granted the decree in favour of the plaintiffs. 10. Muhammad Ayub, plaintiff deposited a sum of Rs. 41906 on 2nd April, 1984 and the decree to the extent of one-fourth share in the property was made final in his favour alongwith his co-plaintiffs decree-holders whereas a decree to the extent of three-fourth share of the property sold, was made final in favqur of Muhammad Yasin when he deposited Rs. 125708. 11. Muhammad llyas and others filed an application for correction of the decree dated 30th January, 1984, to the effect that in case, one set of the plaintiffs failed (to deposit the decretal amount to which date, the second set of the plaintiffs might deposit it and what sum of money, each of the various plaintiffs would deposit if rest of the co-plaintiffs elected not to deposit/ contribute their shares. This application was rejected by the learned Sub Judge, through his order dated 2nd April, 1984 and Muhammad Ilyas and others have sought revision of it. 12. Muhammad Ilyas and others also moved another application on 2nd April, 1984, before the learned Sub Judge and prayed that their appli cation for amendment of the judgment and decree was pending before the Court, therefore, time to deposit the decretal amount might be extended till decision of the said application. This application was also dismissed by the learned Sub Judge, on 2nd April, 1984 and this order of the learned Sub Judge was also the subject-matter of the revision petition. 13. Muhammad Tlyas and others have also filed a revision petition against the decree of the learned Sub Judge Sehnsa dated 30th January, 1984 and prayed that the judgment and decree passed by the lower Court, was ambiguous and did not have the necessary details of the decretal amount each of the plaintiff would deposit and in case, one of them failed to deposit the share of the decretal amount, till what time the rest of the plaintiffs could deposit such amount. Thus, the petitioners were misled and had not been able to deposit the decretal amount in the trial Court, therefore, the decree passed by the learned Sub Judge, might be set aside and the learned Sub Judge might be directed to pass a fresh decree in accordance with law. 14. Muhammad Ayub and others also moved an application in the lower Court on 2nd April, 1984 and prayed that the judgment recorded by the Court on 30th January, 1984, was incorrect and did not have the neces sary details about th6 deposit of the decretal amount, therefore, they might be allowed to deposit the said amount and the time might be extended. This application was also rejected by the trial Court and Muhammad Ayub and others filed the present revision seeking reversal of the said order. 15. Jan Muhammad, vendee-judgment-debtor, has sought revision of the orders dated 2nd April, 1984, whereby on payment of Rs. 41906 only by Muhammad Ayub, the decree was made final in favour of Muhammad Ayub' along with his co-plaintiff-decree-holders and Muhammad Yasin who was required to deposit a sum of Rs. 167642, deposited Rs. 125718 and inspite of deficit payment, decree was made final in his favour. 16. Muhammad Yasin, plaintiff-decree-holder sought revision of the order dated 24th April, 1984, whereby on his application dated 21st April, 1984 for deposit of ?he decretal amount, he was directed to pay only threefourth share of the pre-emption money, that is Rs, 125718. instead of the full of the decretal amount that is Rs, 167642, 17. Ch. Alimuddin, the learned Counsel for Muhammad Ilyas and others, petitioners, argued that the judgment and decree recorded on 30 th January, 1984, did not contain the correct and necessary details of the suit property. It was not clearly mentioned as to who were the plaintiffs, who had to deposit, how much of decretal amount on what date and in case of failure of one of the plaintiffs, upto what time the other plaintiffs would be required to deposit the decretal amount and that the ambiguous terms of the decree, had caused the failure of his client to deposit the decretal amount and inspite of the fact that the lower Court was apprised of this defect, necessary correction was not ordered and the time for depositing the decretal amount was not extended. He stated that the High Court was competent to interfere in revision, with an order passed by a subordinate Court, even where appeal lay to a Court, subordinate to the High Court, such as the Court of District Judge. He argued that his clients were entitled to call in question the decree passed by the lower Court on 30th January, 1984, by way of an appeal in the Court of District Judge but their failure to file such an appeal, did not debar them to approach this Court and invoke its revisional jurisdiction as contemplated by Section 115, C. P. C. He cited cases reported in A, I. R. 1920 Patna 568, A. I. R. 1936 Calcutta 786, A, I. R. 1940 Calcutta 257, A. I. R. 1952 Punjab 428, P. L. D. 1959 (W. P.) Lahore 806, P. L. D I960 Karachi 472, P. L. D. 1971 Quetta 30 and P. L. J. 1983 S. C, (AJK) 103 in support of his contention. 18. The learned Counsel for Muhammad Ayub and others, on the other hand, argued that Muhammad Ilyas and others, plaintiffs failed to de posit the decretal amount as was required by the decree passed by the lo er Court and the terms of the decree were clearly recorded, therefore, their suit stood dismissed and there was no merit in their applications which they moved in the trial Court and they had no right to press the revisio npetitions. He stated that his clients deposited the decretal amount in time as was required by the decree of the lower Court and they were entitled to de- .; posit the rest of the amount but as the lower Court had 'not prescribed the 4,^ period for such deposit, and his clients' application for prescribing the time and permission to deposit the decretal amount which Muhammad Ilyas and others did not deposit, was incorrectly dismissed, therefore, the order passed by the lower Court might be revised and his clients might be allowed to de posit the said amount. 19. The learned Counsel for Jan Muhammad, taking up the objection with regard to the competency of the revision petitions, argued that an appeal against the decree passed by the learned Sub Judge, Sehnsa, on 30 th January, 1984, was competent but no such appeal was filed and in this state , of the matter, the revision petitions filed by Muhammad Ilyas and others arid Muhammad Ayub and others, were incompetent and to support his con tention, he referred to a case reported in P. L. D. 1970 S,C. 506, wherein it was observed as under : "The trend of judicial opinion is now to the effect that if a decree of an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance and it is appealable under the Code, then, whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent. This view is also sound on general principles, for, if th<? framers of Section 115 of the Code of Civil Procedure had of the opinion that a revision would be incompetent only where an immediate appeal lay to the High Court, they would have used the word "from" and not "in" before the words "which no appeal lies thereto". To hold otherwise would lead to anomalous situations, for, a person would thereby be entitled to circumvent the ordinary procedure laid down for preferring an appeal or appeals, as the case may be. He would also be in a position to take advantage of his own negligence by not filing an appeal within the prescribed time. There is no reason why the word "appeal" used in Section 115 of the Code or Civil Procedure should be given the restricted meaning of a first appeal. The words of "no appeal lies thereto" are words of general import and there is nothing in the Section to confine their operation only to first appeals.'' 20. The point that when an appeal against the decree passed by a Court, subordinate to the High Court, lay in the District Court and not direct to the High Court, the revision petition against such a judgment, would be competent, was considered by the Patna High Court in a case reported in A. I. R. 1920 Patna 568 and it was held : "It is the privilege and the prerogative of a High Court, once a record is before it which is erroneous and so erroneous as mani festly to amount to an injustice, to exercise its powers of superintendence to revise such order, or set aside, and direct such further proceedings to be taken as justice may require." 21. The matter with respect to the revisional powers of the High Court in case where the impugned order was appealable in the subordinate Court and not directly in the High Court, was considered by the Calcutta High Court in a case reported in A. I. R. 1936 Calcutta 786 and it was ob served : "Revisional power of the High Court under Section 115 is a bar only when an appeal lies to High Court. The fact that an appeal lay to the lower appellate Court will not take away the powers of the High Court to revise the order of the trial Court. The langu age of Section 115 is that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies thereto." 22. The similar point was considered by the Calcutta High Court in a case reported in A. I. R. 1940 Calcutta 260. The relevant observations are as under : "The words "in which no appeal lies thereto" present some diffi culty. "Thereto" means of course to the High Court. The words "no appeal lies" are not so easy to interpret. Where at the moment the record is called for, the case has reached a stage at which the next appeal, whether first or second, is to the High Court, it is easy enough to say whether an appeal actually lies to the High Court or not ; and if it lies, revision is clearly barred, But where a case has not reached that stage and has, say, only reached the stage at which the next appeal is to some Court subordi nate to the High Court with a possibility of a second appeal to the High Court at some future date, is revision barred ? In other Words, are we to interpret the expression "in which no appsai lies" as if it were equivalent to the expression "in which no appeal lies or may in future lie", I hesitate to place so wide a construction, upon these words. According to the alternative interpretation, revision is barred only where an appeal, whether first or second, lies immediately to the High Court ; where no such immediate appeal lies, the High Court has jurisdiction to intervene in revision, although whether it will exercise this jurisdiction or not will de pend upon the urgency of the need for intervention." 23. In a case reported in A. I. R. 1952 Punjab 428, while considering the same point, it was held : "It is conceded that no aopeal lies to this Court and if an appeal lies at all, it lay to the Court of District Judge. Section 115 gives an aggrieved party the right to file a petition for revision to the High Court in a case where no appeal lies thereto. This means that if the order by which a party is aggrieved is not appealable to the High Court he can file a petition for its revision." 24. In P. L. D. 1959 Lahore 806, it was observed as under : "Section 115, C. P. C. 1908 confers revisional jurisdiction on the High Court in cases in which no appeal lies to the High Court. The word "and in which no appeal lies thereto" do not exclude High Court's revisiona! jurisdiction if the appeal lies to the Dis trict Court and not to the High Court." 25. In P. L. D. 1960 Karachi 472, it was held that the words "there to" in Section 115, C. P. C. 1908 and the words "no appeal lies to the High Court" occurring in the same Section, refer to an immediate appeal against the impugned order to the High Court. Revision, in this Section, there fore, is barred only when an appeal, whether first or second, lies immedia tely to the High Court. Where no appeal lies, the High Court has the jurisdiction to intervene in revision, even if an appeal lies to the subordi nate Court . 26. In the case reported in P. L. D. 1971 Quetta 30, was observed as follows : "Order passed by the Court under Section 39 (c) of the Arbitra tion Act, 1940, was challenged in revision before the High Court under Section 115, CPC 1908. It was contended that since the impugned order was appealable, under Section 39, of the Act, the revision petition was not maintainable. The contention was rejected and it was held that a revision is barred under Section 115. C. P, C. 1908, only when there is right of appeal against the impugned order before the High Court. Since in the present case. the appeal lay only to the District Court, under Section 39 of the Arbitration Act, 1940, the revision was maintainable." 27. In the case reported in P. L. J. 1983 S. C. (AJK) 103, it was held that ' "We have here also the Azad Jammu and Kashmir Courts and Laws Code Act, 1949, which invests the High Court with the at p. 107 authority of superintendence and control over the Courts subordi nate to it. Section 35 of the Courts and Laws Code Act. 1949, gives wider powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the High Court. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the due administration of justice. Prerogative and privilege of >he High Court to superintendence and control subordinate Courts is quite independent and in addition to the powers of the High Court under Section 115, C. P C. This right imposes a corresponding duty to see that Courts subordinate to it, do not invade vested rights of subject by usurping jurisdiction." 28. In the case in hand, the petitioners have also challenged the orders passed by the learned Sub Judge on 2nd April, 1984 and 23rd April. 1984, whereby their applications for correction/amendment of the decree dated 30th January, 1984 extension of time to deposit the decretal amount and for dismissal of the suit for want of deposit of the full decretal amount, for cancellation of orders, whereby on payment of part of the pre-emption money, the decree was made final, were rejected, are required to be consi dered and no appeal is provided against these orders. Besides, the power vested under Section 115, C. P. C, this Court, under the superintending powers, can also pass an appropriate order, in the matter brought before ti, in exercise of its revjsional powers. I. therefore, over-rule the objection with regard to the incompetency of the revision petitions and hold that the reitvision petitions are competent. 29. It is the duty of the Courts to express themselves in very explicit terms while recording the judgments and decrees so that the parties may not fall in confusion while complying with the directions given in the decrees and the terms imposed must not be so harsh as to create difficulties for the parties or to make the execution impossible. The pre-emption decrees are required to be formulated in accordance with the provisions of Order 20 Rule 14, Civil Procedure Code which lays down as under : "he decree shall (a) specify a day on or before which the purchase money shall be so paid, and if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-Rule (!) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to com ply with the said provisions would, but for such default, have taken effect." H). After going through the judgment of the lower Court and the ,|decree recorded by it, i feel that the lo.ver Court failed to comply with the {provisions of Order 20 Rule 14, C. P. C, and there was a genuine reason for lihs petitioners to be tmied by it. It was incumbent upon the trial Court |tr> record {he judgment and clearly lay down the terms of the decree to be jir -sin.ohed witli. In '(he instant case, there were thr;e separate suits and all !:!>; unee plaintiffs claimed their prior fight of purchase against the |is '::;-! 3 ansuriga ihimsMves - ind when tne Dirtie> comprjmised f.J;»i?uSc, >? -.vas
noaiu.:»eiit upon th; :;s ver Cjurt to dearly pr^cnb --i-;; -i t-,e property as well as the amounts which they had to deposit and -! cj^e a-n of them failed to deposit his share of the amount, till what tr,-. nc other party would deposit the same. The lower Court, in the cc:ree, prescribed the time for depositing the decretal amount by Muhammad Ayuh and others and Muhammad llyas and others but it failed t.- prescribe the time, till which time the other plaintiffs will make the derx^it of pre-emption money if one of the plaintiffs having equal right of rr.or purchase failed to deposit his share of the pre-emption money in time. The detail of the property was also not sufficiently given, as for instance, the houses and the trees standing over the suit land, sought to be pre empted, were not listed in the judgment and the decrees. 1, therefore, feal that the lower Court failed to comply with the provisions of law' and .aused the'petitioners to be misled by its order. 31. As I have already held that the learned Sub Judge failed to com- ply with the provisions of law while formulating the decree dated 30th January, 1984 and have declared the said decree to be illegal and have pro posed to direct the learned Sub Judge to pass the decree in accordance with law, as such, the order sought to be revised which, one way or the other, ooze out of the said decree automatically become redundant and infructuoik. 1. therefore, have not examined the merits of those orders in this judgment. 32. In the aforesaid view of the matter, I hereby accept the revision! petitions, set aside the decree dated 30th January. 19X4 and all the orders, >ought to be revised and mentioned in the earlier part of the judgment and direct the lower Court to record the terms of the decree giving full details] and particulars of the property, that is to suv, the amount, each of the parties will have to deposit and the period in which, such amount will be r:u'.itred to be deposited arid in case, any of the plaintiffs, enjoying right of pror purchase, in equal degree, failed to deposit their shares of^thj pre emption money, the other set of the plaintiffs will be entitled' to deposit! sjch amount and in case, the plaintiffs enjoying superior rights of pre emption, !ad to successfully exercise their rights, till what time. Muhammad Yasm. plaintiff will be entitled to deposit the pre-emption money. 33. Consequently, the revision petitions are accepted and disposed of ,--i ins manner indicated above. Keeping in view the circumstances of the I pa,i no ordeas to costs. i TO Mi Petition accepted,
PLJ 1985 FSC 1 PLJ 1985 FSC 1 [Appellate Jurisdiction] Present: gui. muhammad khan, CJ MUHAMMAD ASGHARAppellant versus THE STATERespondent Criminal Appeal No, 161/1 of 1984, decided on 29-11-1984, (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)
S. 10 Zina- Offence ofConsentDefence of Court Duty of Held: Consent being no longer defence and it rather being offence by itself, fact of woman being willing party or not to be immaterial Held further : Tendency to shift entire blame to male partner having tremendously increased in changed legal position not only to attract sympathy of all but also to save women partner from punishment, courts to keep in mind such situation while sifting grain from chaff. [P. 5]C (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)
S. 10 Zina Offence of Consent of victim Relevancy ofProsecutrix not shown to have any motive to falsely involve appellant in offenceCommission of Zina corroborated by statement of Lady DoctorNo marks of struggle or violence, however, found on body or private parts of prosecutrix Held : Offence of Zina having been committed with consent of prosecutrix, conv iction of appellant to be altered from S. 10 (3) to S. 10 (2). [Pp. 5 & 6]A, D & E (Hi) Zina
Allegation ofCourtsRecourse toHeld : Normally people in present social set up to be unwilling to take cases of rape to courts because of belief that publicity of case to affect reputation and honour of family and more particularly of womanHeld further : Resort to courts where unavoidable for any reason, possibility of girl being willing party never to be admitted or conceded. (P. 5]B Mr. Khalid Iqbal Kazi, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for State. Date of hearing : 19-ll-i9S4. judgment The appellant, who had been convicted, under Section 10 (3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, for raping Mst. Manzura B>gum, by the learned Sessions Judge, Jhelum, and sen tenced to 10 years R. I, with 30 stripes, has filed this appeal. 2. The occurrence took place on 24th June, 1983, early in the morning, in the area of Dhoke Muhammad Yar, Dakhli Kanyal, Tehsil & District Jbelum, at a distance of 13 miles from the Police, Station, Jalalpur Sharif. Sughra Bibi P W 2, the mother of Mst. Manzur Begum was away to another village on the relevant day. She returned on the 26th June. On 29th June, 1983, she wrote an application Ex. PB, to the Superin tendent of Police for taking action against the accused, in accordance with the law. In para 4 >f the same application she stated that she had taken her daughter to the Magistrate, Jhelum , on 2?th June, 1983, who directed to get her medically examined. 3. There is an order of the same date by the D. S. P. on the said application, «'for legal action". The applicant then went to the §. H. O., who directed the moharrer on 2nd July, 1983, to register case under Section 10 of Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979. Tne F. I. R. Ex. P A was then lodged by Mst. Sughra Bibi on the same day at 10 30 a.m. and was recorded by Muhammad Afzal, Moharrer/ H C. The allegation made was that her daughter had been subjected to rape, in the bushes near her house, by the appellant with the help of two other accused. They have since been acquitted by the Trial Court, 4. The medical examination of Mst. Manzura Begum conducted by Lady Doctor Mrs. Shahida Arshad PW 3, DHQH, Jhelum, at 12.45 p.m. on 27th June, 1983, showed that there was no mark of fresh injury on her person or private parts. Her vagina admitted 2 fingers. She noticed old tears in her hymen. In her opinion Mst. Manzura Begum was subjected to sexual intercourse. Two vaginal swabs were taken and sent to the Chemical Examiner for analysis hat no. report of the Chemical Examiner bad been produced. 5. The prosecution examined 7 witnesses. Muhammad Afzal, ASI, proved tbe reporting of the F.l.R. Mst. Sughra, mother of the prosecutrix, who tiad returned to village on 26th June, 1983, after a brief absence staled how she approached tne Magistrate to get registered the case. Lady Doctor Mrs. Shahida Arsbad PW 3 proved the medical report, the relevant portion of which has been given above, Nazar Hussain PW 4, a son-in-law of the complainant is an cyetwitness of the incident. Gulab Khan, the other eye-witness is the uncle of PW 4. Their evidence shall be discussed later. Mst Manzura Begum, Prosecutrix, narrated as PW 6 that the t«o accused caught her while she had gone out of her housp to ease herself, in tbe early morning of the 24th June, 1983, and the appellant committed Zina with her twice. Muhammad Safdar PW 7, A.S.I.j investi gated the case. . 6. The accused in his statement under Section 342 Cr. P. C. denied involvement in the incident and stated that he had been entangled on account of enmity and suspicion. He claimed that the was present in his Unit at Jhfclum Cantonment on the day of occurrence. He Uso produced Muhammad Iqbal, Havaldar, DWI, who placed on record the document Ex. DD and DE and summed up his statement as under : "Asghar accused was posted at Jhelum in June, 1983. I cannot teil the exact distance between Jhelum and Dhoke Kanyal. I cannot deny if Dhoke Yar Muhammad Dakhli Kanal is at a distance of 18 mtjes from Jhelum. Buses ply between Jhelum and Dboke Yar Muhammad. Daily Parade State of A Company register is not maintained by me but by Havaldar Major Khayal Badshah. The entires of 24-6-1983 in Ex. DD are not in my hand. It is true that by going through Ex. DE I cannot tell the names of the sepoys who were on duty or who were on leave on 24-6-1983. Ex. DD shows that ten sepoys of A Company were on leave on 24-6-1983. It is correct that I cannot tell definitely, if Asehar accused was on duty on 24-6-1983 after going through Ex. DD". 7. It is contended by the learned Counsel for the appellant that the evidence on record proves-neither the occurrence nor the participation of the appellant in it. It is argued that as the two co-accused have already been acquitted on the same evidence, the conviction of the appellant is also liable to be set aside. The learned Counsel in order to point out a glaring contradiction referred to the statement of Nazar Hussain PW 4, who bad stated that he and his uncle Galab (Chan PW 5, were taking their cattle to graze in the mountain. They bear"d the noise of Afst. Manzura Begum as they passed along the bushes and trees near the Dhoke of the complainant. They rushed to the plac^ of occurrence to see that the appellant was committing Zina with Afst. Manzura Begum while, the uther co-accused were holding her. He further stated that "when we actually reached the place of occurrence the girl was tying the string of her 'shalwar' and on our enquiry she told us that Muhammad Asghar accused had committed Zina with her while his co-accused had secured her". 8. The learned Counsel went on to say that this witness PW 4, who J&the husband of the sister of the prosecutrix took the incident so lightly that he ignored it altogether, left the prosecutrix as she was and took his cattle further to the mountain to graze. It is argued that his conduct is absolutely un-natural. Had the incident been seen by them as claimed they, firstly, would not have left the posecutrix in that way or atleast one of them would have taken her care and would have escorted her to the house. The PW 4 is said to have come back to the house of the complainant after leaving his cattle in the mountain and according to the learned Counsel no action with regard to the so serious an incident was taken for 3 days. 9. The learned-Counsel for the appellant also assailed the statement of the PW 5 as contradictory of the evidence of PW 4 and urged that that he also be disbelieved. Gulab Khan PW 5 who is an uncle of PW 4 had deposed that on bearing some noise from bushes near the house of the complainant, he and PW 4 went to the place of occurrence and saw Muhammad Asghar lying on Mst. Manzura Begum while the other two co-accused were holding knives According to him, he and Nazar Hussain PW 4 gave beating to all the three accused with goading stricks. Mean while, Mst. Manzura Begum PW 6, who was lying on the ground, got up and tied the string of her 'sha1war\ The accused ran away, the prosecutrix - went to her house while the two witnesses proceeded further to take their cattle to graze in ths mountain. It will be seen that PW 4 had to ask the prosecutrix about the incident while PW 5 deposed that they not only saw commission of Zina but also gave beating to the accused. 10. 'Mst., Manzura Begum PW 6, the prosecutrix had narrated a different version. She stated that on reaching near the bushes to ease herself, she saw the appellant and two other co-accused. The co-accused caught hold of her while the appellant committed sexual intercourse. According to her all of them had knives and threatened to do away with her if she raised alarm. Despite that she raised noise on which the two PWs. came there and actually saw the occurrence. The accused on noticing their arrival ran away. - 11. It is to be noted that PW 4, Nazai Hussain was confronted that he had not stated before the Police in his statement under Section 161 .Cr. P. C. that he saw the appellant commiting Zina-Bil-Jabr or that Afsr- - Manzura Begum was tying the string of her 'shalwar'. He also did not say before thePolice that the two co-accused were holding the prosecutrix by the arias. PW 5 Gulab Khan had also not stated before the Police that the three accused were holding knives and the appellant was lying on Mst. Manzura Begum when they reached the place of occurrence. Mst. Manzura Begum also denied that the accused were given beating by PWs. The beating given to the appellant was alleged by PW 5 only. 12. None of the three prosecution witnesses, therefore, supported each other. Their statements are at such a variance that if one is to be believed the other must be rejected. All of them cannot be reconciled. PW4 and PWS. who allegedly came together to the place of occurrence are supposed ... to have seen the same thing but they also contradicted each other very materially. In the situation they have to be disbelieved as, may be none of them had witnessed the occurrence and they came in only to support the prosecution. We are, therefore, left with the statement of the prosecutrix only. She stated that she was subjected to sexual intercourse. Such a thing .,. is not expected of a woman unless she was surprised during the commission of the offence'or she had neither virtue nor honour, Such allegations have also been raised by women with ulterior motives and occasionally to rope in aa innocent man in order to save a culprit under pressure on coercion. Be that as it may there is always a reason behind and it must be either proved or be inferable from facts. No such situation has presented itself in the evidence on the record and as discussed above, the suggestions of the defence do not spell it out. 13. It is true that before the enforcement of the Hadood Laws the Courts of this country considered the evidence of the prosecutrix, to convict, under Section 376 PPC, on the same basis as that of an accomplice, need ing corroboration. Under the above provision the consent of a woman above the age of fourteen was a good defence. One of the reasons for corroboration was that if the evidence showed that the prosecutrix was of mature age, used to sexual intercourse and her conduct or circumstances raised a suspicion that she was a willing party, she alone could not be believed to convict the accused. See Bashir Ahmad f. The State fPU 1979 Cr. C. (Kar,) 14]. 14. Thus when there was no injury on the person of the prosecutrix and no evidence to sugg:st that she made any attempt to raise an alarm or ,to seek release it was suspected that she was a willing party, and so corroboration was insisted upon to base conviction on it, as held in Mnrad and another v. The State (1968 P. Cr. L. J. Iil4j. It was held in Muhammad Abdul Khaleque and others v. The State (PLO 1960 S. C. 325) that in sued a situation the Court should be satisfied that the woman's story is corroborat ed either by circumstantial evidence connecting the accused with the crime or at least by some circumstance connected with the woman which would by itself show that her story of forcible intercourse was true. 15. On the other hand, it is also an established view with regard to Section 376 PPC that the corroboration of the projecutrix in case of a rape is not always indispensible. The thing to be kept in view in such cases is whether it is safe, in the circumstances of a particular case, to convict ob that solitary statement of the prosecutrix. It was held in Saleh Muham mad v. The State (PLD 1966 Kar. 101) and Mohammad Abdul Kbaleque and others v. The State (PLD 1960 S. C. 325) that if it is supported by the _,record ibat the statement of the prosecutrix had been honestly made and if in accord with all the probabilities, the Court should not refuse to sustain the conviction on the ground that there should have been some corrobora tion. The question for consideration, thus is, can the statement of the prosecurtix in this case be taken as honest and in accord with all tbe probabilities ? 16. In the present case there is nothing on record to suggest that the prosecutrix had any motive to falsely involve the appellant in this heinous offence. Normally, the people in our social set up are unwilling to take cases of rape to Courts because of the belief that publicity that the case will attract would affect the reputation and honour of the family and more particularly the woman. However, wherever resort to the Courts is b unavoidable for any reason, a general possibility that even though the girl was a willing party to the occurrence, it would hardly be admitted or conceded. In fact it is not uncommon that a woman, who was a willing party, acts as a ravished woman, if she is surprised when in amorous court- __ship, love-making or in the embrace of a man she had not repulsed. 17. Again, Section 10 (2) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, has made a complete departure from the law contained in Section 376 PPC read with Section 375 PPC. The consent is no longer a defence and is rather an offence by itself and so the fact that the woman was a willing party or not is immaterial. In this changed legal position, the tendency to shift the entire blame to the male partner has tremendously increased so that it not only attracts sympathy of all but also saves the woman partner from the punishment. It is. therefore, necessary for the Courts to keep in mind the above situation while sifting grain from chaff. 18. Keeping in view the above guidelines we may have a new look at the itatement of the prosecutrix to see if it is to be believed and if so to what extent ? She, in her examination-in-chief stated that she was raped twice by the appellant while his two co-accused had caught her and had threatened to do away with knives if she made noise, bnc, however, was not gagged as she did raise noise but ouly when she was being raped the second time by the appellant. The commission of Lina is corroborated by P W 3 Dr. Shahida Arshad. In tnat evenc the tact ibat tnere were no marks of struggle or violence on her body or private parts would be suggestive of the fact that she was a consenting party. Fven tae noise was made on the second go. May be she was surprised by some one at that time and so she raised alarm ? On the other hand, there is nothing on record to the effect that she made the allegation in her statement just to involve the appellant falsely on some basis of enmity ana suspicion. There s no valid suggestion to the effect either. The presence of tne appellant in lis Military Unit has also not been proved by D W 1. Tne portion of his statement produced above rather leaves tne situation very fluid. Tne Investigating Officer P W 7 deposed that the tamer of the appellant and his co-accused stated that the appellant bad come to tne village on the night-pass, It is, therefore, proved on tne record tnat tne appellant was in the village, which is only 16 miles from Jhelum and connected witii a pacca road, on the fateful morning. 19. In this .view of the matter, we have no good reason to disbelieve that the appellaat did commit Zina. Tne facts on record, however, do suggest that it was not a Zina-Bit-Jabr bat the act was done witn tne con sent of the prosecutnx. We, therefore, alter toe conviction t'roja Section 10 (3) to 10 (2) and keeping in view Section 382-B Or. P. C. reduce tne sentence to 5 years R I. with 15 stripes. Tae appellant is also hued Rs. 2000/-, and in default of payment of nne he shall sutler 3 montns' S. i, (TQM) Sentence reduced.
PLJ1985FSC6 PLJ1985FSC6 (Revisiooai Jurisdiction] Present : Gut muhammad khan, CJ MUMTAZ KHAN-Petitioner versus THE STATERespondent Criminal Revision No. 3411 of 1984,_decided on 27-11-1984. (i) ProhibitionStEnforcetnent of Hadd) Order (P. O. 4 of 179)- ;
Art. 4 read with Constitution of Pakistan, 19?3Arts. 4 & 12 IntoxicantOwning possessing Offence of Sentence forPeti tioner convicted and sentenced under Art. 4 of Order to one month's R. I, by trial Magistrate-Subsequently, Sessions Judge enhancing such sentence to 4 years R. I.Relevant Article, however, providing punishment upto 2 years R.I. only on date of commission of offenceAmendment subsequently made also not applying retrospec tivelyHeld : Sessions Judge to have no jurisdiction to award sentence greater than that provided on date of occurrence, [Pp. 7 & (ii) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)
Arts. 4 & 27 read with Constitution of Pakistan, 1973Art. 203DD IntoxicantOwning or possessingOffence ofSentence for Order ofInterference withOrder of Magistrate based on con fession of accusedHeld : Trial court having good reason before it in giving reduced sentence and there being also nothing illegal in discretion exercised, order of such court to be maintained, [P. e]5 (Hi) Constitution of Pakistan, 1973
Art. 4 & 12See : Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)Art. 4. [Pp. 7 & 8]/4 (it) Constitution of Pakistan, 1973 - Art. 203-DD See: Prohibition (Enforcement of Hadd) Order (P.O. 4 of 1979)-Arts. 4 & 27. [P. 8[B Mr, Muhammad Munir Peracha, Advocate for Petitioner. Sardar Muhammad Ghazi, Advocate for State. Date of hearing : 27-11-1984. judgment Mumtaz Khan, petitioner was convicted by the 1st Class Magistrate at Attock. under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 on the 27th of February, 1984 and sentenced to one month's R. I , with a fine of Rs. 2000 or in default of payment of fine to undergo further 3 months simple imprisonment. 2. The State filed a criminal revision petition before the learned Sessions Judge, Attock praying for enhancement of the sentence. It was accepted by the learned Sessions Judge, vide his judgment dated 23rd of October, 1984, and the sentence was enhanced to 4 years' R. I., with whip ping numbering 10 stripes. The sentence of fine was also maintained. 3. It is contended by the learned counsel for the petitioner that as Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 provided only punishment upto two years' R I. on the 21st of August, 1983 when the occurrence took place, the learned Sessions Judge had no authority in law to enhance the sentence by applying the law as amended vide P. O. 12 of 1983, dated 26th December, 1983. 4. It is argued that no criminal law can be applied with the retros pective effect, in view of Article 4 of the Constitution read with Article 12. The learned counsel for the State has nothing to say in defence of the impugned order. It is, however, explained by him that probably this point was not brought to the notice of the learned Sessions Judge when he pass ed the impugned order. 5. The law on ths above point is well settled that no Court can impose greatest penalty than what was there on date of the commission of offence. Even the amendment made on the 26th of December, 1983 did not apply the said provision retropectively. The learned Sessions Judge, there fore, did no't have jurisdiction to award a sentence greater than what was provided on the date of occurrence. The impugned order is, therefore, liable to be set aside. 6. I have also gone through the order of the Magistrate which was based on the confession of the accused. The trial Court, did have a good reason before it in giving the reduced sentence.'I, therefore, do not find anything illegal in the discretion exercised The result is that the order of the learned Magistrate passed on the 27th of February. 1984 shall be-main tained. The petitioner shall also be released if he had alreauy undergone the sentence awarded by the learned Magistrate and if his further detention is not authorised by a valid order. ((TQM) Order according! y.
PLJ 1985 FSC 8 PLJ 1985 FSC 8 [Appellate JurisdictionJ . Present: fakhre alam, CJ f MOOR MUHAMMAD-Appellant versns THE STATERespondent Jail Criminal Appeal No. 81/1 of 1984, decided on 7-11-1984. Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979)-
S. 17 read with Pakistan Penal Code (XLV'of I860)S. 392 RobberyOffence ofConviction-forAppellant proceeded against for Harrabah under S. 17 of Ordinance VI of 1979, tried and convicted by Additional Sessions Judge under S. 392 P.P.C.Excep tional features in case rendering prosecution case highly doubtful Occurrence, according to complainant, taking place at 9-30 a m. and not at 12-15 p.m. as recorded in initial reportInjured witness as well as investigating officer giving'time of 12.00 noonTalcing away of watch by companion of appellant alsoccnspicuously omitted in first information report Four live certridges found in magazine of pistol while according to witnesses appellant exhausted ammunition in pistolfcven no effort made to recover any of empties from spot- Counter version of parties about robbery highly imaginativePlace not deserted one and about 50/60 persons gathering on spot soon after occurrenceHeld: Inconsistencies in prosecution case being of crucial consequences case, of robbery to be rendered doubtful, benefit of which to be extended to appellant. [Pp. 9 & 10]A & B Mr.. Muhammad Bashir Kiyani, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for Respondent. Date of hearing : 7-11-1984. judgment Noor Muhammad son of Haji Abdullah was proceeded against foi Harrabah, under Section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. He was tried by learned Additional Sessions Judge, Multan who vide bis Judgment dated 1-11-1983 impugned before me through Jail appeal, convicted him under Section 392, P. P. C. and sentenced to seven years' R. I. and a fine of Rs. 2000 or in default to further undergo one year R. 1. 2. On the request of the appellant he was summoned to the Court and heard. Mr. Muhammad Bashir Kayani, Advocate was also engaged at State expense to defend him in the appeal filed through jail. 3. In short compass the prosecution story as revealed at the trial is that on 23-6-1982 i.e. the day of occurrence Muhammad Ramzan (P. W. 2) the complainant was on his way to his home after visiting Shah Shams. Whsn at 12.15 p.m. he was passing through the field of Jawar within the limits of village Chan Andhey Wala Noor Muhammad accused-appellant and his un-identified companion accosted him. Noor Muhammad accused caught hold of the complainant by neck whereas his confederate robbed him of Rs. 2110 and a wrist watch. The alarm raised by the complainant attracted Ain-ul-Haq (P. W. 3) at the spot. Noor Muhammad accused who was armed with pistol fired at Ain-ul-Haq. The bullet injured him on the right shoulder. The complainant and Ain-ul-Haq tried to over-power Noor Muhammad accused. In the scuffle the pistol went off again as a result Noor Muhammad accused also got injured. Noor Muhammad accused was over-powered and soon after produced before Liaqat AILS. f. (P. W. 7). Liaquat AH took the pistol (Exh. P. 1) into possession having four live cartridges in the magazine. Both Ain-ul-Haq (P. W. 3) and Noor Muhammad accused were got medically examined and the report of the Doctor indicates that they have received these injuries from close quarters. In all seven Prosecution Witnesses were produced and examined by the prosecution in support of the charge, When questioned Noor Muhammad accused denied the allegation and stated that in fact he was attacked and injured by Muhammad Ramzan and Ain-ul-Haq who tried,to rob him. Later they connived with the police thereby a false case was fabricated against him. The accused emphatically denied the ownership and recovery of the pistol from him. 4. This case has some exceptional features pointed out by the learned counsel for the appellant, which render the prosecution case highly doubt ful. While appearing in Court Muhammad Ramzan complainant stated thai actually the occurrence took place at 9-30 a.m. and not at 12.15 p.m. as recorded in the initial report. The Investigating Officer as well as Ain-ul Haq (P. W. 3) the injured witness gave the time of occurrence to b. 12.00 noDn. The taking away of the watch by the companion of the accus ed appellant is conspicuous by its omission in the first information report According to both the eye-witnesses they succeeded in apprehending th< accused as he bad exhausted the ammunition in the pistol. Whereas accord ing to the 1. O. when he took over the pistol in possession, soon after the occurrence it still had four live cartridges in the magazine. No effort was made to recover any of the two empties from the spot which would have helped the Court in pin-pointing the scene of delict. The version of Muhammad Ramzan was that the money was removed from his pocket. On the other band Ain-ul-Haq (P. W. 3) stated that it was removed from the fold of loin cloth. Ain-ul-Haq's evidence is that when he reached the spo the companion of the accused had already left the scene. It is on record (that soon after the occurrence about SO/60 persons gathered on the spot, [which would show that the place was not a deserted one. The counter Iversion of the parties about robbery is highly immagmative Keeping in view the time and place of occurrence the robbery in broad day light in an inhabited area appears to be least plausible. The profession of Muhammad Ramzan complainant is given to be a labourer Why and for what purpose he was carrying a sum of Rs. 2110 on his person is an enigma shrouded in mystery. 5. In between the lines one can read that there was something else between the parties which both sides have successfully supressed. Any way the inconsistencies noted in the prosecution case are of crucial conse quences which has rendered the case of robbery doubtful, t-he benefit of which has to be extended to the appellant. As such the appeal is accepted, the conviction and sentence awarded to the appellant under Section 392, P P. C. are set aside. He shall be released forthwith if not required in any other cause. (TQM) Appeal accepted.
PLJ 1985 FSC 10 [Original Jurisdiction] PLJ 1985 FSC 10 [Original Jurisdiction] Present : fakhre alam, CJ ; muhammad siddiq & maulana abdul quddus qasmi, JJ Molvi MEHBOOBUR REHMANPetitioner Versus GOVERNMENT of N.W.F.PRespondent Shariat Petition No. 16/1 (also 22/1) of 1984, decided on 5-11-1984. (i) Islamic Law Jurisprudence
Silence (sakoot) Doctrine ofEntries of 1871-72 in record of rights repeated in settlement of 1904-05 and subsequently of 1946-47 Petitioners, however, keeping mum over entries for more than centuryHeld : Silence in such matters to be equivalent to consent. [P. 12] (ii) Islamic Law & Jurisprudence
Silence (safcooODoctrine of Held : Silence to be considered eqvivalent to consent in cases where it be duty (of concerned person) to speak or express his willingness. [P. 12]5 Heday«(Vol. 1, p. 294) Mejelle (Ss. 67, 438, 773 & 971), Mueenul Hukkam (pp. 160-61) & Al-' Ashbab wal-Nazair (p. 154) ref. (HI) Islamic Law & Jurisprudence
Silence (sakoot} Doctrine ofPetitioner not approaching court for redress of his grievance for sufficiently long period Held : Silence of such person to amount to his consent to bring his case within scope of "by mutual agreement" within meaning of vers« 4 : 29 of Holy Quran. [P. 12]C (ir) Islamic Law & Jurisprudence Landlord & peasantRelationship between Muzaraat Contract ofHeld : Contract between landlord and peasant on specific share in crop, in which sowing, protecting, irrigating and cutting of crop to be whole responsibiltiy of peasant^ to be admissible. [P. 13]D Al-Mughani by Ibn-e-Qudama (Vol. V. pp. 416-17) ref. Mr. Ghulam Mustafa Avon, Advocate for Petitioner. Date of hearing : 31-10-1984. judgment Fakhre Alam, C. J.In these two Shariat Petitions the Petitioners have challenged the record of rights of the settlement of 1871-72 and subsequent settlements of 1904-05 and 1948-49 in which rights have been determined in the forms of Surat-e-Dahi ( o i oj>i» ) Tanqeeh Haqotq-e- Muzarian (oljl>^ Jy» £$) and Wajibul Ard (^jVlv^lj) to be repug nant to the injunctions of the Holy Quran and Sunnah. According to the first settlement some persons of the Balakot who were Swati by caste had been declared owners of the land of village Ban Bagar which is a suburb of Balakot while the residents of Ban Bagar who were Gujar by caste had been declared tanants. Moreover under clause 1 and 3 of Wajibul Ard ( ) t^ 16 owners of these lands were also declared the owners of Shamilat land including the pastures («5"l^»), Dhaka Darakhtan (oU^ji «TuJ) and Dhaka Rakh (T; «Tui) which are the lands of public utility. The Counsel for Petitioners while arguing the case discussed the question of the jurisdiction of this Court. In this connection he referred to section 203-B (c) where in it has been mentioned that the law which can be aallenged in this Court includes any custom or usage having the force of law. He then stated that the rights settled in Waj but Ard djjVI v^'j) etc. were recorded on the basis of custom and us>age prevalent in the area at that time but be could not produce any documentary proof in support of the claim. Hi then submitted that there is no concept of absentee ownership in Islam and as such the land occupied by the residents of Ban B/gar should not be treated to be the ownership of the residents of Balakot. Besides he submitted -'that pastures (»5i^-) Dhaka Darakhtan ( u k ».j,j Ti»i) and Dhaka Rakh (4<"j Tt»J) are considered as common property in Islam and these cannot be treated to be owned by individuals. In this connection he relied upon a tradition of Holy Prophet in which the Holy Prophet said, "Water, Grass and Fire are common among all the people".. He also produced some references from "Kitabul Amwal by Abu Ubaid, vol I, Islam ka Nizam-e-Adl by Syyed Qutub, Urdu Transla tion by Dr. Najjatullah Siddiqui". So far the record of rights of the lands of Ban Bagar as in the settle ment of 1871-72 is concerned it is to be presumed that this must have been made as usual by the mutual agreement of both the parties at the time of settlement. Whether this agreement was arrived at on th? basis of any custom is immaterial. Both the parties agreed and this wgj given effect to in the Revenue Record. ' The entries of 1871-72 were repeated in the settlement of 1904-05 and subsequently of 1946 47. The petitioners kept mum over the entries for [more than a century. This Court has already held in it's judment on Shariat Petition No. 2/1 of 1983 that it is the established principle of Islamic law that silence in such matters is equivalent to consent. In Islamic law Silence (o_>C.) is considered equivalent to consent in ases where it is the duty of the silent to speak or express his willingness. In this connection the Holy Prophet observed about the adult girl to whom was made an offer of marriage with a man named before her, that her silence is her consent. (Hidaya, vol. I, page 294). This principle has been described in section 67 of the Mejelle which is reproduced as under: "To a man who keeps .silence no word is imputed, but where there is necessity shown, silence is a declaration. That is to say, it is not said of someone who keeps silence that he has said such a thing, but where there is reason why he shall speak, his keeping silence is regarded as an admission and a declaration". (Mejelle Section 67). Some instances of this principle have also been mentioned in sections 438 ~'73 and 971 of Mejelle. A famous Hanafi jurist Allama Tarablas Writes, "Silence is considered consent in many cases like silence of an adult girl in the contract of her marriage, silence in contracts of hiring, gift, agency sale, p"re-emption rights, silence about the defect in the sold thing before the contract of sale etc ". (Mueenul Hukkam pages 160-161 ; Al-Ashban wal-Nazair by Ibn-e-Nujaim, page 154). It is thus derived from this Islamic principle .that the sillence of a person in a matter whether he had the chance to approach for getting his right amounts to his consent since if he had any grievence, he would have gone for redress to the Court. The silence (o^C-) of the .petitioners in this case for such a long period brings their case within the scope of (by mutual agreement) in verse 4 : 29. Regarding the hadith of the Holy Prophet about the water, grass and fire being common property, it is to be mentioned that this hadith is about the water, grass and fire which are not owned by any individual and if any individual by his own expense or labour provided water, grass or fire in his own property this will be considered his own property and it will not be free for all. (Aunul Maabud'Sharh Aba Daod, vol. Ill, pages 295:296). Sections 1243 and 1244 of the Mejelle are also explanatory of this principle and are reproduced as under : 1243: Trees which grow naturally on mountains, which have not passed into the possessiou of anyone, that is to say, on mountains which are free for all to use, are free for all to use". 1244 : Trees which grow naturally on someone's mulk (property) are his own mulk (property). Without his leave another cannot cause them to be made into fire wood. If he does, he makes compensation". It may also be mentioned here that the practice of absentee landlord has been prevalent in the periods of Holy Prophet, Khulafa-e-Rashideen and later Muslim Governments and communities all over the world. The majority of the jurists of all schools of thought are unanimous on the point that Muzyarat (.ijl>0 which is a contract between landlord and peasant on specific share in the crop in which the sowing, protecting irrigating, cutting etc. of the crop is the wholy responsibility of the peasant, is admissible in Shariah. (Al-Mogani Ibn-e-Qudama, Vol. V, pages 416-417). In these circumstances both the petitions are ^without force and are dismissed. (TQM) Petitions dismissed.
PLJ 1985 FSC 13 PLJ 1985 FSC 13 [Appellate Jurisdiction] Present: muhammad siddiqub, J SABIR HUSSAINAppellant versus THE STATERespondent Cr. Appeal No. 30/1 of 1984, decided on 26-9-1984. (i) Offence of Zina (Enforcement of Hodood) Ordinance (VII of 1979)
S. 10 (2) Zina-bil-Jabar Offence ofEvidence, appreciation of Acquittal, basis for Accused not present when statement of prosecutrix under S. 164 Cr. P. C. (V of 1898) recordedProvisions of sub-section (1-A) of Section 164, Cr. P. C. also not legally com plied with Accused, in circumstances, materially prejudiced due to his absence during actual recording of held, Statement of prosecution under S. 164 Cr. P. C.Held farther: Since statement of prosecutrix neither made in presence of accused nor found voluntary, such statement not to be safely made basis for conviction of accused in circum stances. [P. 20]£> (ii) Criminal Procedure Code (V of 1898)-
S. 164StatementRecording ofAccusedPresence ofCrossejumnationOpportunity of-Magistrate, after recording statement of prosecutrix, calling accused in court and reading statement of pro secutrix to himAccused, however, not cross-examining prosecutrix at such stageMo reason assigned for absence of accused during recording of statement of prosecutrixNote of Magistrate showing that statement of prosec- ,nx read over to accused and opportunity given to him for cross-examination but not availed off Held : Accused being not present in court at time of recording of statement of prosecutrix, question of cross-examining prosecutrix by him not to ariseProsecutrix recovered on 14-3-83 but her statement recorded 16-3-83 and she remaining with police during such periodHeld ; Possibility that prosecutrix gave that statement under pressure of police not to be ruled out. [Pp. 18 & 19]A & B (iii) Criminal Procedure Code (V of 1898)
S. 164 (1-A)StatementRecording of "Presence" Meaning of Held : Word "Presence" in S. Ifc4 (1-A) Cr. P. C. to imply actual physical presence and not mere constructive presence and to mean physical existence of person in particular place at given time with reference to particular act or happeningHeld farther : "Presence" to be opposite of absence which connotes non-existence. [P. 20]C Mr. Sh. Zamir Hussain, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for State. Date of hearing t 14-5-1984. judgment The Additional Sessions Judge, Attock, vide impugned judgment dated 4-2-1984 found the appellant guilty under section 10 (2) of the Offence of Zina(Enforcement of Hadood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced him to undergo R. I. for 10 years plus whipping numbering 30 stripes and a fine of Rs. 2.0JO or in default of payment of fine further R. I. for 6 months. The appellant has challenged his conviction and sentences through the present appeal. 2. In support of its case the prosecution produced 10 witnesses. Lady Dr. Syeda Qamrun Nisa (P. W. 1) on 15-3-1983 at 2 00 p.m. medi cally examined Mst. Gul Bibi prosecutrix and found the following obser vations : - "(1) A bruise about 2" size medial side of left thigh. (2) A small bruise about the size of peanut on the right knee joint. (3) Nail scratches (4 in number) on the upper side of back/' P. V. Examination : Hymen torn. Tages present which were slightly inflamed. Vagina easily admits two fingers. The girl was mensturatmg since morning, Her shalwar was stained with blood. Three swabs from vagina and one from premium were taken and sealed. The shalwar was also sealed and handed over to the police for onward transmission to Chemical Examiner. The in juries were simple ia nature. Probable duration of injuries was 8-9 days." Opinion "She has been subjected to sexual intercourse." The same lady doctor on 2M-1983 medically examined Mst. Gul Bibi prosecutrix to determine her age and found the following observa tions (1) Age given in the school leaving certificate was 1-4-1969. (2) Eruption of teeth. 3rd Molar (wisdom teeth) not erupted. (3) X-Rays elbow joint head of the radios and olcranon process of the ulna are partially fused with shaft. X-Ray of Wrist joint: lower ends of he radious and ulna were partially fused with shaft. According to the above examination age of the girl was about 14-15 years." Dr. Shamsuddm (P W. 2) on 15-3-1983 at 2.40 p. m. medically examined Sabir Hussain accused and found him fit for sexual act. 3. H. C. Gul Hussain Shah (P. W. 4) on 15-3-1983 was handed over a sealed parcel of shalwar, nn envelope and phial pertaining to this ase which he first kept the same in Mai khana and then on the same day handed over the said parcel to F. C. Phool Pir Shah (P. W 3) and deli vered the same intact in the office of the chemical examiner, Lahore on 16-3 1983. H. C. Muhammad Hanif (P. W. 5; on receipt of complaint from S. I. Zaman Shah (P. W.) recorded the formal F. I. R. (Exh. P. E.) Mahboob Khan (P. W. 6) stated that he knew nothing about this occur rence. At the request of A. P. P. this witness was declared bositle and was allowed to be cross-examined by A. P. P. In cross-examination by A. P. P. he denied the suggestion that on 3-3-1983 at about 6 00 p.m. he was present at the Bus Stand and that he had seen Sabir accused along- with Mst. Gul Bibi (P. W.) while boarding a Bus which was bound for Rawalpindi. The witness did not know if the parties bad effected com promise. He denied the suggestion that he was won over ,by the accused and was concealing the truth. 4. Mst. Gul Bibi (P. W. 7) is the abductee in this case. She had deposed that about 9 months back at about 5.00 a.m. she came out of her house to give water to her maternal-grand father namely Muhammad Din. Three persons were standing outside her house and they had muffled their faces and they forcibly put her in a Car and took her to Lahore . Those persons confined her in a house at Lahore and those three persons committed zinta-bil jabr with her. Then one of them took her to Rawal pindi by train. The police then apprehended her and the boy accompany ing her was also arrested by the police. She alongwith that boy were brought to the police station Hasanabdal by the police. She was further stated that she was compelled by the Police to make a statement and she under the compulsion and threats of the p 'lice made a statement before the Magistrate at Attack. She was medically examined by the lady doctor and then the police handed over her to her uncle Gohar Rehman (P. W.) At that stage the prosecutor made a request that the witness was conceal ing the truth and she be declared ho-tile and accordingly his request was allowed and he was further allowed to cross-examine her. In crossexamination by A. P. P. she denied the suggestion that the Magistrate gave her 1/2 hour to ponder. However, the Magistrate recorded her statement which was Exh. P. F. She had stated before the Magistrate that she was making statement before him under the pressure of the police. She was confronted with Exh, P F where it was not so ecorded. According to her she had not nominated any person in her statement before the Magistrate. She was confronted with Exh. P F where the name of Sabir accused was mentioned. According to her she had not stated before the Magistrate that Sabir Hussain accused committed zinabil'jabr with her. She was confronted with Exh. P F where it was so recorded. She had further stated before the Magistrate that Sabir accused forcibly abducted her and took her to the Hill known as Sakhi Baba and kept her there for three days. According to her the contents of Exh. P F were correct but she made that statement under the threats of police. Sabir accused was also present in the Court of the Magistrate when her statement Exh. P F was recorded and he was afforded an opportunity to cross-examine her but he did not cross-examine her. She has deposed that she did not know Sabir accused whether he belonged to her Mohallah. She could not say whether Sabir accused was arrested at the Railway Station alongwith her. She denied the suggestion that due to compromise she was concealing the name of Sabir accused who was arrested at the Railway Station, with her. It is further denied by her that in fact Sabir accused abducted her and committed zina-bil-jabr with her. In crossexamination by the defence counsel, she has deposed that she had named Sabir accused on the asking of the police, as the police threatended her to depose against him. According to her she saw Sabir accused for the first time when he was brought before the Magistrate under custody. To a Court question she admitted that at the time of the alleged occurrence she was virgin and was not married to any one. Haji Gohar Rahman (P. W. 8) is the uncle of the abductee Mst. Gul Bibi. He is the complainant in this case. At the relevant time she was living with him in his house. He has deposed that 8 months back he had gone to offer his morning prayers. On his return to his house, he found Mst. Gul Bibi missing. He searched for her but in vain. He then drafted an application Exh. P G and presented the same before the S. H. O. He has further deposed that Mst. Gul Bibi was recovered after 8-10 days by the police and she was apprehended at Railway Station, Rawalpindi . At that time, he was present with the police. S. I. Zaman Shah (P. W. 9} is the Investigating Officer in this case. On 4-3-1983 Gohar Rahman (P. W.) submitted a writted application Exh. P. G. before him and after making an endorsement, he sent the same to the Police Station for registration of the case He visited the spot, prepared the site plan Exb. P H and .recorded the statements of the P. Ws. He received secret information that Mst. Gul Bibi abductee and Sabir accused were coming to Rawalpindi by Tazgam train on 14-3-1983. He arranged a raiding party including Gohar Rahman P W and reached Railway Station, Rawalpindi Tazgam train reached Rawalpindi Railway Station at about 7.00 p.m. Sabir accused and Mst. Gul Bibi P. W. came out of the train and he apprehended them and on their personal search two railway tickets (p. 1 and p. 2) were recovered and Identity Card of Sabir accused (p. 3) and , " currency notes worth Rs. 25 (p. 4/1-7) were seized vide memo. Exh. P J He brought Sabir accused from Rawalpindi to Attock and got him medi cally examined. He also got Mst. Gul Bibi P. W. medically examined at Hasanabdal. After medical examination the lady doctor handed over to him shalwar of Mst. Gul Bibi, a phial and an" envelope which he handed over to Moharrar Muhamm d Hanif. He also ascertained the age of Mst. Gul Bibi P. W. from the same lady doctor. He got recorded her statement under section 164, Cr. P. C. from the Magistrate on .16-3-1983. On the completion of the investigation, he challaned the accused. In cross-examination he has admitted that he did not make any employee of the Railway at Rawalpindi to join the investigation and did not cite any witness of Exh. P J. It is admitted by him that before the jtaterqent of Mst. Gul Bibi was recorded under section 164, Cr. P. C. by the Magistrate, she remained at the police post alongwith her uncle Gohar _ Rahman (P. W.) He has denied the defence suggestion that Mst. Gul Bibi made her statement before the Magistrate at his instance and that he tutored her to depose against the accused. It is further denied by him that he threatened her to depose against the accused and that he did not arrest Sabir accused from Rawalpindi Railway Station but he was subsequently - arrested after 14-3-1983 and took his identity card after 14-3-1983. 6. Malik Abdur Rahim (P. W. 10) was at the relevant time Magis trate 1st Class at Attock. According to him on 16-3-1983 he recorded the statement of Mst. Gul Bibi P. W. under section 164, Cr. P. C. (Exh. P F) After recording her statement, Sabir accused was also called in Court and he remained present there. Her statement was read over to him and he was given an opportunity to cross-examine her but he declined. In crossexamination by defence this witness has denied the suggestion that Zaraan Shah S. I. (P. W). was present inside the Court when he recorded the state ment of Mst. Gul Bibi. It is further denied by him that before recording her statement, Mst. Gu! Bibi told him that she was deposing under the pressure of said S. I. It is further denied by him that Mst. Gul 7. Sabir Hussain accused in bis statement recorded under section 342, Cr. P. C. denied the prosecution allegations. He stated that he was not arrested alongwith Mst. Gul Bibi at Railway-Station, Rawalpindi nor was any ticket recovered from him. The Investigating Officer, however, took into possession his identity card. About the statement of Mst. Gul Bibi recorded under section 164, Cr. P. C. before Malik Abdur Rahim, MIC (P. W. 10), he stated that the statement was not recorded in his presence. According to him only the identity card Exh. P. 3 belonged to him and rest of the articles did not belong to him. The SHO summoned him from his house and he was arrested and his identity card was seized. The«accused produced no evidence in defence. 8. The trial court vide impugned judgment convicted and sentenced Sabir Hussain accused ai mentioned above. 9. I have beard at length the counsel for the parties and have also perused the entire material available on the record. 10 It is contended by the learned defence counsel that this is a case of no evidence because Mst. Gul Bibi prosecutrix and Mahbub Khan P, Ws. who were the main witnesses of the prosecution on merits, have not suppor ted the prosecution but were declared hostile and APP was also allowed to cross examine them. Other witnesses of the prosecution are only formal and Government officials. In reply, the learned State counsel has argued that the statement of Mst. Gul Bibi recorded earlier under section 164 Cr. P. C. by the Magistrate (Ex. PF) corroborated by medical evidence, the report of the Chemical Examiner Ex. PK and apprehension of the accused and the abductee together from Rawalpindi Railway Station is sufficient to maintain the conviction of the appellant. In other words, the foundation of the prosecution case is the statement of the prosecutrix Mst. Gul Bibi recorded under section 164 Cr. P. C, by the Magistrate (Ex. PF). She was duly confronted by APP in cross examination with the said statement. She has admitted the contents of that st^teinent but has alleged tha,t she made that statement under the pressure of the police. This allegation of pressure and threats of the police at the time of recording her said state ment Ex. PF has acquired rather significance. Thus we have to see whether the sid statement was voluntary in nature or made under pressure and threats of the police. I have minutely perused the said statement Ex. PF. The last portion of this statement reads as under ; Sd. MIC 3.35 PM After the said statement there is the following note by the Magistrate : Sd. MIC 16-3-83 It is alleged by the defence that the following signs and words support the allegation of the prosecutrix that she might have made the said state ment under the pressure of the police otherwise there was no justification for the absence of the accused during the period when her statement was actually recorded : " Summoning of the accused to the court after the completion of the said statement and then reading over that statement to him and t&en to as him to cross examine the prosecutrix creates some element of doubt in he prosecution version No reason has been assigned for the absence ot the accused during the recording of her statement. The note of the Magistrate after her statement clearly shows that the appellant was absent during the recording of her statement. Admittedlv, the accused was absent during the period when the statement of the prosecutrix was recorded, there was no justification for showing the above mentioued signs of cross examination and writing that opportunity of cross examination given but not availed off. When the accused was absent from the Court, the question 01 cross examining the prosecutrix by him would not arise. It is nobody s case that the accused was represented by the counsel or somebody else at that time. The allegat.on of the defence is that the above mentioned signs of cross examination (x x x) and the words (ajW ^ k £v) were added subsequently because the space between two lines is not the same as ine space in the remaining statement. The learned State counsel has not been able to explain this addition of the said signs and words in that manner at that stage Further an opportunity to cross examine her at tnat stage is belied by the subsequent note of the learned Magistrate when me accused was summoned in the court later-on. It was at that later stage when the accused was called before the Magistrate and statement of the prosecutrix was read over to him that the said signs of the cross examina tion and the words reprpduced above, might have been added. The said note further shown that the accused, at that stage, was afforded an opportunity to cross examine the prosecutrix. If the accused was given an opportunity at that later stage, there was no justification of showing that an opportunity of cross examination was earlier given to the accused but was not availed off There is no explanation why the accused was not present in the court when the statement of Mst. Gul Bibi prosecutrix was recorded under section 164 Cr. P. C. by the Magistrate. According to the defence the only possible explanation in this regard is that the police wanted her statement in a particular manner and perhaps in the presence of the accused, she could not depose according to the wishes of the police. It is further alleged that the investigating officer might have been present in the court during her examination and if the accused had been present in the court at that time, he would have objected the same and in the absence of the police officer, perhaps she could not give the required statement. I have given my anxious consideration to the said statement of Afst. Gul Bibi prosecutrix (Ex.PF) and the manner in which it was recorded and entertain serious doubts regarding bona fides of the prosecu tion. In the circumstances, the possibility that Mst, Gul Bibi gave that . statement Ex. PF under the pressure of the police cannot be ruled out. This inference is further supported by the fact that although she was recovered on 14-3-1983, yet her statement under section 164 Cr P. C was recorded on 16-3-1983 and till then she remained with the police As mentioned above her nudical examination was conducted earlier on B 15-3-1983. It is not denied even by the learned State counsel that the investigating officer should have given preference to her statement und section 164 Cr. P. C. over her medical examination and her said statement should have been recorded at the earliest 'after her recovery. The delay in this behalf also creates some doubt against the prosecution. In the circumstances, it can reasonably be inferred that the statement of Mst Gul Bibi prosecutrix recorded under section 164 Cr. P. C. was not voluntary but was made under the police pressure. 11. Another legal infirmity found in the prosecution case is that according to sub-section (1-A) of Section 164 Cr. P. .C., any such state ment may be recorded by such Magistrate in the presence of the accused who is also given an opportunity ofcr,oss examining the 'witness making the statement. In other words, the statement of such a witness under sectioa 164 Cr. P. C. is to be recorded is the presence of the accused. Reason for the presegce of the accused is obvious that be is given an opportunity of cross examining that witness and to see and to see whether the witness is mxking statement voluntarily or not. In the instant case, it is an admitted fact that the statement of Mst. Gul Bibi prosecutrix was not recorded in the presence of Sabir accused but he was called in the court of the Magistrate subsequently and then her statement was read over to him and then was given opportunity to cross examine her but he did not avail the same. According to the learned State counsel, the words "in the presence of the accused" are not mandatory and if immediately thereafter, the accused was produced before the Magistrate who had recorded the said statement and the same was duly read over to him, the spirit of law has been complied with and no prejudice has been caused to the accused because opportunity of cross examining the prosecutrix was given to him. According to the State counsel, the word "presence 1 ' also means "constructive presence". I do not agree with him. The word "presence" in Section 164 (1-A) Cr. P. C. mplies actual physical presence and not mere constructive presence. The word "presence" means the physical existence of a person in a particular place at a given time with reference to a particular act or happening. Presence" is opposite of "absence' which connotes non-existence. In the instant case, admittedly Sabir accused was not present during the period when the statement of Mst Gul Bibi prosecutrix (Ex. P. F.) was actually recorded under Section 164 Cr. P. C. and, therefore, provisions of sub section (1-A) of Section 164 Cr. P. C. have not been legally complied with. The accused, in the circumstances, has been materially prejudiced due to bis absence during the actual recording of her statement under Section 164 Cr. P. C. because he could neither see her demeanour nor. could judge whether she was making that statement voluntarily or under the pressure of the police. He could also not see whether the police officer was present in the court room at the relevant time or not. It is not denied that in the presence of the accused the police could not exert any influence over the prosecutrix and she could also feel more independent and free in the presence of the accused. Since the said statement of Mst. Gul Bibi prosecutrix Ex. FF was neither voluntary nor made in the presence of Sabir accused, it is not safe to make such statement as the basis for the conviction of the accused. The other corroborative pieces of the evidence alone would not be sufficient to justify the conviction of the appellant. On this short ground alone, this appeal is liable to be accept ed. The learned defence counsel has tried to raise some other technical objections but in view of my above finding, it is not necessary to discuss such technical pleas. ' 12. For the foregoing reasons, this appeal is accepted, the conviction and sentences of Sabir Hussain, appellant are set aside and he is acquitted of the charge. He is already on bail and his bail bond shall stand discharged. (Aq. By.) Appeal accepted.
PLJ 1985 FSC 20 PLJ 1985 FSC 20 [Appellate Jurisdiction] Present: muhammad siddiq, J Mst. SUKHAN-Appellant versus . THE STATEReepondent Criminal Appeal No. 5/L of 1984, decided on 27-8-1984, (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) Ss. 10(2) & 4ZinaOffence ofConviction forProsecution mis erably failing to produce any evidence to substiuntiate ingredients of zina Held : Merepresence of semen on vaginal swabs of appellant (female) not to bring her case within definition of zina unless said semen be further proved to be result of sexual intercourse committed by appellant with her consent with man not legally married to her Held farther : Mere medical examination of appellant and positive report of Chemical Examiner regarding her vaginal swabs not to be sufficient to prove offence of zina under S. 4 of Ordinance against her. [P. 29]H (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)
S. 10 (2) Zina Offence of Conviction for Challenge to Element of doubt existing at every stage of prosecution caseHeld : Appellant to legitimately claim benefit of such doubt. [P. 30J/ (iii) Offence of Zina (Enforcement of Hadcod) Ordinance (VII of 1979)
S. 4 Zina Offence ofPenetration Requirement of Held : Mere insertion or entering of penis into vagina being sufficient, ejaculation or emission or seminal discharge not to be necessary to constitute offence of zina Held farther: Love-making activities of male and female like kissing embracing, lying on same cot or even lying on each other' not to bring case within mischief of zina unless they indulge in actual penetration. [P. 29]G (iv) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) -
S. 4 Zina Offence ofHeld : Offence of zina to presuppose _existence of two human beings each belonging to opposite sexHeld farther : Offence not to be possible by one human being whether male or female or by two or more human beings belonging to same sex or being sexless. [P. 28]5 (v) Offence of Zioa (Enforcement of Hadood) Ordinance (VII of 1979)-
S. 4 Zina Offence ofSexual intercourse committed with woman against her will forcibly or during her sleep or while under influence of some intoxicant administered to her against her willHeld: vVoman, in such situation, not to be punished for zinaHeld farther : Female to be held guilty of zina only when such sexual intercourse be com mitted with her consent or will. [P, 29]E (vi) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)
S. 4Z/naOffence ofValid marriagePlea ofHeld : Expres sion "valid marriage" to imply requirement of such marriage as required under Islamic Law. [P. 28]C 1983 SCMR 942 ref . (vii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) -
S. 4Sexual intercourseMean!og of. [P. 29]D Black's Law Dictionary & Blackiston's New Gould Medical Diction ary ref. (viii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)
S. 4 Expression "wilfully"Meaning of. [P. 29]F et seq Oxford English Dictionary (Vol II). Black's Law Dictionary & 1899 i Q.B 283 ref. (in) Zina- Meaning of. [P. 2%]A et seq. Urdu Diars-e-Mnaraf e-Islamic (Vol. X), Hmi Urdu Lughat by Waris Sarhindhi & Feroz Sons Urdu English Dictionary re/. Ch. Muhammad Aslam Chatta, Advocate for Appellant. Malik Muhammad Yousaf Khan, Advocate for State. Date of hearing : 16-8-1984. judgment Muhammad Hussain complainant on 3-8-1981 had lodged a report with the police alleging therein that he had married his daughter Mst. Sukhan to Muhammad Arif, P. W., resident of Fattu Wala about two years earlier. She was living with her husband and performing her matri monial obligations. About two months prior to the lodging of the report, his son-in-law / e. Muhammad Arif, P. W. went to Hasilpur for cultivating his land there. The other daughter of the complainant namely Mst'. Pairan was married to the brother of said Muhammad Arif and both the brothers Were residing together in the same house. Mst. Pairan, P. W. tuld her father Muhammad Hussain that during the night of occurrence, Allah Rakkha, Faiz Bakhsh, Wahid Bakhsh and Khuda Bakhsh armed with hatchets and solas entered her house and forcibly abducted his daughter Mst. Sukhan accused. Next morning when he reached the house of his daughter he was informed about this occurrence by his other daughter Mst. Pairan. When he alongwith Allah Ditia, P. W. was in search of his daughter, at Pul Faiz-Wali, Rab Nawaz, Member Union Council told him that his daughter Mst. Sukhan was going with the said accused persons towards Mailsi. He went to Wahid Bakhsh and Fida Hussain accused for the return of his daughter but first they promised to return her but ulti mately refused to do so. The cause of this occurrence mentioned by the complainant in the report was that Wahid Bakhsh had fraudulently obtained a sum of Rs. 20,000 from him but subsequently litigation started between them and due to this reason his daughter Mst. Sukhan was abducted by the accused persons. It appears that subsequently one Dost Muhammad was also included among the accused persons. Mst Sukhan was initially treated as prosecution witness being the abductee. It was during the investigation that on the directions of DSP, the investigating officer Muhammad Ibrahim arrested Mst. Sukhan on 27-12-1981 as an accused person because she was involved in the case. Next day i. e. 28-12-1981 she was medically examined by lady doctor Shahnaz Akhtar. The Investigating Officer challaned the following six persons in this case : 1. Mst. Sukhan alias Ghulam Sakina, wife of Muhammad Arif. 2. Dost Muhammad son of Fazal Ahmad. 3. Wahid Bakhsh s/o Fazal Din. 4. Fida Hussain s/o Wahid Bakhsh. 5. Allah Rakkha s'o Faiz Bakhsh. 6. Faiz Bakhsh s/o Ellabi Bakhsh. These persons were tried by the Additional Sessions Judge, Vehari, who on 4-9-1983 framed charge under Section 10 (2) of Offence of Zina (Enforce ment of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordi nance) against all the six accused persons. On 25-9-1983 the statements of four prosecution witnesses were recorded and for the remaining evidence the case was adjourned to 9 10-1983 on which date two more PWs. were exa mined and for the remaining evidence the case was adjourned to 26-10-1983 when the prosecution evidence was concluded and the case was adjourned to 14-11 1983 for recording the statements of the accused persons. On 14-11-1983 before recording the statements of the accused persons under Section 342, Cr. P. C., the learned Additional Sessions Judge studied the evidence brought on record by the prosecution regarding the charge fram- ed against them under Section 10 (2) of the Ordinance and came to the conclusion that none of the prosecution witnesses bad stated that the accused persons committed zina under Section 10 of the Ordinance. The trial court, however, found that there was evidence that semen was found in the vagina of Mst. Suklan accused but that did not necessarily mean that it were the co-accused of Mst. Sukhan who committed zina with her. The learned trial Judge, therefore, found no substance to put to accused D^st Muhammad, Wahid Bakhsb. Allah Bakhsh, Fida Hussain and Faiz Bakhsh so as to obtain their explanations under Section 342, Cr. P. C. The Trial Court, therefore, acquitted them all of the charge. However, about Mst Sukhan the trial court found that she was medically examined bv lady doctor Shahnaz Akhtar (P. W. 6) who took two vaginal swabs of Mst. Sukhan and sent the same to the Chemical Examiner for detection of semen. The Chemical Examiner found, as per report Exb. P. E, that the swabs were stained with semen and blood. According to the trial court, she had left the house of her husband Muhammad Arif, P. W. two months prior to 3-8-1981. She was, therefore, required to explain the presence of semen. The trial court, therefore, recorded her statement under Section 342, Cr P. C. on that day and the case was adjourned to 20-11-»983 for arguments The interim order passed by the trial court on 14-11-1983 is relevant and the same is, therefore, reproduced below : "Present : Accused on bail with counsel. ADA for the State. I have studied the evidence brought by the prosecution on the charge settled against the accused and have come to the con clusion placed below. The charge against the accused is that they have indulged in zina as per section 10 of Zina Ordinance. Neither of P W who are 10 in number, have alleged that the accused present in court have committed zina. There is, however, evidence that semen was found in the vagina of Sukkhan but the presence of semen in her vagina does not necessarily bring to the conclusion that it were the co-accused of Sukkhan that they committed zina with her. I, therefore, find no substance to put to Dost Muhammad, Wahid Bux, Fida Hussain, Allah Bux, and Faiz Bux so as to obtain their explanations within the meaning of section 342, Cr. P. C. I therefore, acquit them all of the charge. Mst. Sukkhan was medically examined by P. W. 6 and two vaginal swabs were taken by her and sent to the Chemical Examiper for analysis. The Chemical Examiner found as per report eks. P. E. that the swabs were stained with semen. She left the bouse of her husband Arif P. W., two months prior to 3-8-1981. She was, therefore, required to explain the presence of semen. I propose to examine her under section 342, Cr. P. C. Sd/« ]4-!M983. Addl. Sessions Judge Camp at Mailsi. Statement of Sukkhan as per section 342, Cr, P. C. has since been recorded. For arguments to come up on 29-11-1983. Sd/- 14-11-1983. Addl. Sessions Judge camp at Mailsi. 2. In support of its case the prosecution produced 10 witnesses. Head Constable Ghulam Yasin (P. W. 1) on receipt of complaint Exh.'P.A./l from Ghulam Sabbir, ASl, recorded formal FIR Exb. P. A. 3. Muhammad Hussain (P. W. 2) is the complainant and father of Mst Sukkhan accused. He has deposed that he married his daughter Mst. Sukhan with Arif P. W. four years ago and about 26 months back she was present in her house alongwith her sister Mst. Pairan (P. W. 7) while her husband Arif had gone to Hasilpur. Allah Rakkha, Faiz Bakhsh Wahid Bakhsh and Khuda Bakhsh armed with hatchets entered her house and forcibly abducted her as told to him by his other daughter Mst. Pairan P W next morning. He accompanied by Allah Ditta went in search of Mst. Sukhan and came across Rab Nawaz, Member at canal bridge who told him that the accused and Mst. Sukhan were going towards Mailsi. A panchayat was convened and Wahid Bakhsh accused first pro mised to return Mst. Sukhan but ultimately refused to do so According to the complainant, Mst. Sukhan was abducted on account of money suit lodged by him against Wahid Bakhsh in the sum of Rs. 20,000. This amount had been taken on loan from him. He lodged the report Exh P A II before the police after about 1£ months of the occurrence. In cross examination, he has stated that he resided at Jalla Jeem which was at a disiance of about four miles from Fattuwala. He came to know about the occurrence next morning when he visted his daughter Mst. Pairan P W. The occurrence was not reported to him by her while he was at Jalla Jeem. He has further deposed that Mst. Sukhan accused had filed sui ^ for dissolution of marriage against Arif 4/5 days prior to Exh. P. A./I. The suit was dismissed at Multan. He, however, admitted that Mst. Sukhan had filed another suit at Vehari and obtained ex-pane decree but the proceedings were afoot for the cancellation of ex parte decree. The complainant had filed money suit at Mailsi and it was d smissed but was decreed in appeal and at that time the matter was pending before the High Court. 4. Muhammad Arif (P. W. 3) is the husband of Mst. Sukhan accus ed. He has stated that he had gone to Hasilpur for cultivation and in his absence the accused had abducted his wife Mst. Sukhan. In cross examina tion, it is admitted by him that he came to know of the abduction after 10'15 days and a messenger had infortnid him at Jalla Jeen and then he returned home. He had applied for cancellation or et-parte decree obtain ed by Mst, Sukhan. 5. Haji (P. W. 4) is the wajtakkar witness. According to him, at the relevant time when he was returning home from Abdul Hakim enroute Multao, he saw all the accused at Dokocta and on his querry, Wahid Bakbsh accused told him that a relation of Mst. Sukhan had died and they were going there. The witness informed the police about it. 6. ASI Ghulam Sabbir (P. W. 5) on 3-8-1981 was on patrol duty in the city. The complainant Muhammad Hussain met him and made state ment Exb. P. A./I thumb marked by him. He sent the same to the police station for formal registration of the case. He proceeded to the spot, in spected and drew site plan Exh. P B. He also examined the P Ws. And , arrested Dost Muhammad and Wahid Bakhsh accused, on 9-8-81. There after the investigation was transferred from him. In cross examination, it is stated by this witness that it did not come out as a result of his investi gation that any of the accused had illicit relations with Mst. Sukhan accused. It is further admitted by him that as per FIR Exh. PA/1 Mst. Sukhan was an abductee and not an accused. 7. Lady Dr. Shahnaz Akhtar (P. W. 6) on 28-32-1981 examined Mst. Ghulam Sakina alias Sukhan accused at the instance of the police and found as under: "1. 20 years old married woman having fully developed breast and gentalia and had no injury on her parts of the body. 2. Vaginal examination was not painful. Hymen showed old lacera tion. Two fingers could easily be admitted. Two vaginal s\vabs were taken and sent ,to Chemical Examiner through Police. Exh. P. C. is the correct carbon copy of the medico-lesal re port." 8. Mst. Pairan Mai (P. W. 7) is the real sister of Mst. Sukhan accus ed and her husband and the husband of Mst. Sukhan are real brothers inter se and they resided together at Chah Fattu Wala. She claims to be an eye witnesses of the abduction of Mst. Sukhan. According to her during the night of occurrence, Wahid Bakhsh, Fida Hussain, Allah Rakkha and Faiz Bakbsh accused entered her house armed with dangs and hatchets while she and Mst. Sukhan were asleep in the house. The accused abducted away forcibly Mst. Sukhan accused. Next morning she went to the house of her father and narrated the occurrence to him. In cross examination she has stated that she could not raise noise one accused stood up besides her and that accused slipped away alongwith other accused. After going away the accused alongwith the abductee, she did not raise alarm nor informed anybody. According to her, she was examined by the police after a month or so and by that time Mst. Sukhan had not been recovered. 9. Allah Bakhsh (P. W. 8) claims to have attested the recovery memo. Exh. P. D. regarding the nikahnama Exh. P. D./l which was pro duced by the complainant before the police. 10. ASI Hafiz Khuda Bakbsh (P. W. 9) oa 28-12-1981 got Mst. Sukban accused medically examined at Civil Hospital, Mailsi. He detained her in the judicial lock-up on the orders of the Magistrate He also for. arrested some other accused persons. In cross examination, be has .ted that SHO Muhammad Ibrahim bad arrested Mtf v Sukhan accused but not in his presence. He had escorted her from police lock-up for Qedical examination. He has admitted that she was confined in the police lock-up ftpm 27-12-1981 and she spent the night at the police station. The witness did not know if any of her relations remained present at the police station during the preceding night. According to this witness it was not within his knowledge that Mst. S ikhan accused held out at the time of her medical examination that she had been raped at the police station. 11. SHO Muhammad Ibrahim (P. W. 10) on the directions of DSP arrested Mst Sukhan accused on 27 12-1981. In cross examination, this witness has stated that none other accused was accompanving Mst. Sukhan and her father Muhammad Hussain P W and her husband Arif P W bad also not accompanied her. 12. Mst. Sukhan in her statement recorded under Section 342, Cr. P. C. denied the prosecution allegations. The following questions put to her and answers given by her are relevant : Q. 4. Where are you living now and since when ? Ans. I am residing with my present husband Khadim Hussain for the last six months after having obtained decree for dissolu tion of marriage from the court of Judge Family Court, Vehari. Q. 5. When did you leave the house of Arif P W and where did you live thereafter till the alleged marriage with Kbadim Hussain ? Am, Arif P. W. turned me out five years ago whereupon I came to live with my father Muhammad Hussain P. W. I lived with my paterus for about 3| years and then shifted to my Pir Syed Mabboob Shah who resides at Pebalwan Arain. 1 stayed with him till my marriage with Khadim Hussain. / Q. 7. It is correct that you had been arrested on 27-12-1981 and medically examined on 28-I2-I941 by the A. W. M. O. Civil Hospital, Mailsi ? Ans. I was produced at the police station by Syed Mahboob Hussain Shah 3-4 days prior to my formal arrest. I was kept at tbe police station for 3-4 days and then arrested on 27-12-81. It is however, correct tbas I was medically examin ed on 28-12-1981 by tbe A. W. M. O. During my stay at the Police Station I was subjected to zina by some unknown per son. I brought it to the notice of the police but no action was taken by them. Q. 8. Is it correct that the A. W. M. O. Shahnaz Akbtar P W took two swabs from your vagina for analysis for Chemical Examiner and later found to be stained with semen ? ads. It is correct that two vaginal swabs were taken by the lady doctor but tbe presence of semen was due to the zina com mitted with me at the Police Station. Q. 9. Why this case against you and why the P. Wi. depon4 against you ? Ans. My parents wanted me to live with Arif which I did not like hence they all conspired together and involved me in a false case. They also held enmity with the co-accused." She, however, produced no evidence in defence. 13. The trial court vide impugned judgment dated 19-12-1983 found Mst. Sukhan guilty under Section 10 (2) of the Ordinance. The trial court observed as under : "None of the 10 P. Ws. produced at the trial testified that Sukkhan accused committed zina with any one but the fact that semen was found in her vagina long after her separation from her husband Arif P. W. 3 has to be deeply looked into. The presence of semen no doubt speaks of zina commuted by her." According to the trial court, it was established that Mst. Sukhan accused committed zina since the presence of semen in her vagkia could not be attributed to her husband Arif P. W Thus on the basis of the report of the Chemical Examiner Exh. P. E. her vaginal swabs being stained with semen and blood, the learned trial Judge found her guilty under section 10 (2) of the Ordinance and sentenced her to undergo R. I. for five years and whipping numbering 30 stripes and fine of Rs. 1,000 or in default of payment of fine further R I. for three months She has challenged her conviction and sentences through the present appeal. 14. I have at length the learned counsel for the parties who have also taken me through the entire material available on record. 15. It is vehemently contended by Mr. Muhammad Aslam Chatta, the learned counsel for the appellant that the ingredients of the offence of zina as defined in Section 4 of the Ordinance have not been established against Mst Sukhan and, therefore, her conviction and ssntences are liable to be set aside. 16. Initially the case of the prosecution as revealed in the FIR was that Mst. Sukhan was abducted by co-accused. However, after the investi gation the trial court did not frame the charge of abduction but framed charge of zina under Section 10 of the Ordinance against all the 6 accused persons including Mst. Sukhan It is an admitted fact, as observed by the trial court, that none of the witnesses produced by the prosecution has alleged that Mst. Sukhan committed zina with any o'f the co-accused. In other words, there is no direct o. - positive evidence of zina available on record. At the close of the prosecution evidence and before recording the statements of the accused persons under Section 342 Cr. P. C., the trial court, therefore, acquitted 5 co-accused on 14-11-1983 but examined only Mst. Sukhan under Section 342 Cr. P. C. and ultimately found her guilty under Section 10 (2) of the Ordinance on the basis of the Chemical Examiner's report regarding her vaginal swabs being stained with semen and blood. It is in this factual back-ground that the learned defence counsel has contended that the ingredients of the offence of zina as defined in Section 4 in the Ordinance have not been established against Mst Sukhan appellant, and, therefore, her conviction and sentences are liable to be set aside. 17. Thus the question which arises for consideration is whether io the absence of any direct or positive evidence, a female accused can be conconvicted under Section 10 (2) of the Ordinance merely on the basis of the Chemical Examiner's report's that her vaginal swabs were found .stained with semen and blood. 18. Before discussing the ingredients of Section 4 of the Ordinance, let ijus see the meaning of the word 'zina' in general sense. In 1 the word 'zina' (lij) inter-alia has been explained as under : . According to Feroze sods Urdu English Dictionary, the ttrm 'zina'- (Uj) includes both adultery and fornication. 19. The word 'zina' has been defined in Section 4 of the Ordinance which is reproduced below : "4. A man and a woman are said to commit ':ina' if they wilfully have sexual intercourse without being validly married to each other. Explanation. Penetration is sufficient to constitute the sexual inter-course necessary to the offence of zina.'' A perusal of the above shows that before the prosecution can succeed in securing the conviction of an accused person for 'zina', it has to fulfil the following ingredients of this Section : (/j There should be a man and a woman. Thus it presupposes the existence of two human beings and each must belongs to the opposite sex. In other words this offence is not possible by one human being whether male or female or by two or more human beings belonging to the same sex or being sexless. (/i) Such man and woman are not validly married to each other. It meat ^ there is no valid marriage between the two. Again the expression "valid i arriage" will imply the requirement of such marriage as required under t';e Muharamadan Law. The word 'validly' has also been interpret ed by the Appellate Sharial Bench of the Supreme Court in Gbnlam Sbabir Shah's case reported in 1983 S. C. M. R. 942. That interpretation is constitutionally binding upon this Court and I respectfully adopt the same. (Hi) Such man and woman should have committed sexual intercourse with each other.The expression "sexual intercourse" has not been defined in the Ordinance but has been explained in various dictionaries. In old edition of Slack's Law Dictionary, "sexual intercourse" means carnal cooulation of male and female implying actual penetration of the organs of the latter. In Blakiston's New Gould Medical Dictionary, the word 'conpulation' means the sexual union of the male and female to satisfy their carnal desire, and tbe word 'sexual' means coitus.(/v) Such man and woman should have committed sexual intercourse "wifully". It is not denied that sexual intercourse can also be committed, inler-alia, with a woman against her will forcibly or during her sleep or while under the influence of some intoxicant administered to her against her will and in such situation she cannot be punished for zina. It is only when such sexual intercourse is committed with her consent or will that she can be held guilty for such zina under the said Section. The word "wilfully" or "wilful" has been used in different statutes and, therefore, has been the subject matter of interpretation before superior courts. Lord Russell C. J. in the Queen v. Senior [(1899) 1 QB 283)] defined the word "w ilfully" meaning an act which is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it. In Oxford English Dictionary, Vol. II, the word -'wilfully" has been explained as willingly, readily, submissively, of one's own free will, of one's own accord, voluntarily, according to one's own will, freely, intentionally, deliberately In Black's Law Dictionary, a wilful "act may be described as one done intentionally, knowingly, and pur posely, without justifiable excuse as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertenly. (v) Penetration. The most essential ingredient of zina under Section 4 is penetration which is given in the explanation of this Section. In simple language, penetration means entering of the male organ (penis) into the vagina For the offence of zina, mere insertion or entering of the penis into the vagina is suffici enthowever slight an extent. Similarly, ejaculation or emission or seminal discharge is not necessary to constitute the offence of zina. Similarly, lovemaking activities, howsoever objectionable morally and socially might be, of such male and femal; like kissing, enbracing or lying on the same coi or even lying on each other will not bring the case within the mischief of zina unless they indulge in actual penetration. 20. In the instant case, all the above ingredients of Section 4 are conspicuously absent as the prosecution has miserably failed to produce any evidence to substantiate the sami. A mere presence of semen on the vaginal swabs of Mst. S jkhan appellant would not bring her case within the efinition of the offence of zina as contemplated by Section 4 of the Ordinance unless it is further proved that the said semen was the result of sexual ntercourse committed by the appellant with her consent with a man who, was not legally married to her. Mere medical examination of the appellant and tbe ositive report of the Chemical Examiner regarding her vaginal swabs would not be sufficient to prove against her the offence of sina under Section 4 of he Ordinance. 21. part from the above legal infirmities, the prosecution case is l»»o full of doubts. The occurrence to jk place two months prior to the lodging of F.I.R. on 3-8-1981. This delay has not been satisfactorily explained by the complainant. According to the F.I.R., it was the case of abduction of Mst, Sukhan by four male accused persons. In the F.1,R. only names of four accused persons were mentioned. However, during the investigation another accused namely Dost Muhammad was added. Mst. Sukhan was not treated as an accused person in the beginning of the investigation. According to Muhammad Ibrahim, SHO (P.W. lu), he arrested Mst. Sukhan on 27-12-1981 as an accused person under the directions of DSP. There is no material available on the record to justify her arrest on that day as an accused person because she was medically examined by lady doctor Shahnaz Akhtar (P.W. 6) on next day i.e. 28-12-19S1 when her two vaginal swabs we-e taken and sent to the Chemical Examiner for detection of semen. The report of the Chemical Examiner Ex P.E. is dated 21-1-1982 which shows that the vaginal swabs were found stained with semen and blood. Thus it is not clear on what evidence or material the present appellant was treated as an accused person on 27-12-1981. Although the allegation against the male accused persons in the F.I.R was that they had aoducted Mst. Sukhan, yet the trial court did not frame any charge for abduction but the charge framed on 4-9-198j was only for zina under Section 10 of the Ordinance. Even for the charge of zinc, all the 5 male accused were acquitted by the trial court vide interim order dated 14-11-1983 before recording their statements under Section 342 Cr. P. C. It was only Mst. Sukhan appellant who was examined under Section 342, Cr. P. C. by the trial court. In that statement, she has clearly alleged that she was produced at the police station by Syed Mahboob Ali Shah 3/4 days prior to her fromal arrest and was kept at the police station for 3/4 days and then arrested on 27 I2-19«1. It is further alleged by her that during her stay at the police station, sha was subjected to zina by some unknown person and she brought this fact to the notice of the police but no action was taken by them. According to her, the presence of semen on her vaginal swabs was due to the zina committed with her at the police fetation. Thus it is clear that an elernjnt of djuot existed at every stage of Jthe prosecution case and trie appellant can legitimately claim the benefit of Msuch doubt because it is well settled principle of Islamic Jurisprudence that Uhe benefit of doubt must go to the accused. 22. For the foregoing reasons, this appeal is accepted, the conviction and sentences of Mst. Sukhan are set aside and she is acquitted 01 the charge. She is already on bail and her bail bond stands discharged. (TQM) Appeal accepted.
PLJ 1985 FSC 30 PLJ 1985 FSC 30 [Appellate Jurisdiction] Present : muhammad siddiq, J SH AMMAN-Appellant versus THE STATE- Respondent Cr. Appeal No, 72/L of 1983, decided on 9-8-1984. (i) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)
Ss. 3 & 4IntoxicantPossession and manufacturing ofOffence ofEvidence, appreciation ofAcquittal, basis forPolice not obtaming report of chemical examiner and not sending recovered liquor and lahan for scientific chemical analysisExcise Inspector bring not expert witness, bis statement carrying no weightHeld: In absence of chemical analysis of recovered liquor and lahan, what was recovered from accused not to be safely held to be actually liquor and lahan as defined by statuteConviction and sentence set aside. [P. 39j// & / (ii) Prohibition (Enforcement of Hadd) Order (P. O 4 of 1979)- Arts. 3 & 4 read with Evidence Act (1 of 1872)S. 101Intqxicant Possession and manufacturing ofOffence of Onus of proof Shifting ofHeld: In presence of report of Chemical Examiner, initial burden placed upon prosecution to stand discharged and .same to shift to accused to prove that what was recovered from him, (is) not in fact liquor and lahan etcProsecution not sending any sample out of alleged recovered liquor and lahan to Chemical Examiner for analysisHeld: In absence of such analysis, onus to remain on prose- ' cufion, [P. 35 & 38J.4, F&G (iii) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)
Arts. 3 & 4 read with Evidence Act (I of 1872)-S 45Intoxicant Possession and manufacturing ofOffence ofExcise Inspector Statement ofValue of Credibility of Held : Excise Inspector, being for all practical purposes, prosecutor in case of this type, not properly to be given power to test nature of liquor and lahan etc. As prosecutor such/Inspector being interested in success of prosecu tion case witness not to enjoy same amount of confidence as any independent witness and accused to be justified to doubt his bona fides Held further: To avoid any such apprehension of accused, job of taking such articles should be entrusted to some independent agen cy like Chemical ExaminerInitial test may be carried out by Excise Inspector under provisions of Punjab Excise Manual Vol. Ill to determine ingredients of liquor or lahan to contain investigation but ulti uate report for placing it before Court shall be obtained from Chemical Examiner Such initial analysis by Excise Official not (necessarily) to be made basis of conviction of accused person. [P. 36]D fir) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)
Arts. 3 &4 read with Evidence Act (I of 1872)S. 45Intoxicant Possession and manufacturing ofOffence ofExcise Inspector Statement ofSufficiency ofProofHeld : Mere verbal assertion by some official of Excise or Police department that what was recovered from accused was lahan not to be sufficient for conviction unless further proof by scientific analysis by independent agency be available. [P. 36]£ 0) Evidence Act (I of 1872) S 45Expert witnessExcise officialStatement ofHeld: Excise official including Excise Inspector by virtue of his .office or designation not to be treated as expert witness under Section 45 of Evidence Act. [P. 35]fl ( vi) Evidence Act (I of 1872)
S. 45Expert witness Excise official Statement of Held : Statement of Excise official not to be treated as that of expert witness unless such witness be shown to have acquired special knowledge skill or expense in science of intoxicants-Expert witness, held further, must have made special study of that particular subject or acquir ed special experience there in i.e. he must be skilled in any particular art, trade or profession having adequate knowledge of that subject for forming opinion on supject in dispute Mere knowledge or experience not necessary to be sufficient to determine nature of exciseable article or substance without applying certain laboratorical and chemical tests. [P. 35]C Khawaja Muhammad Afzal, Advocate for Appellant. ( Col ) Muhammad Abdur Rashid, Advocate for State, Date of hearing : 9-8-1984. judgment The Assistant Commissioner/Sub Divisional Magistrate Samundari. vide impugned judgment dated 6-4-19X3, found Shamman accused guilty under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order), and sentenced him to undergo R.I, for three years. The convict has challenged his conviction and sentence through the present appeal. 2. In support of its case the prosecution has produced five witnesses. Excise Inspector Masood Ahmad (P. W. I) on 28-12-1981" at 3.00 P.M. on receipt of secret information, organized a raiding party and raided the Dhari of Shamman accusedi situated in Chak No. 433 G.B. It is alleged that the accused was distilling liquor at that time. The witness has given the description as to how the accused was distilling the liquor. The raiding party recovered distilled liquor weighing 215 oz. and three pitchers contain ing lahan buried under the heaps of cow-dung. Each pitcher was weighed as 15 killos. The liquor and the other items were seized vide memo (Ex. PA) attested by him. He drafted the complaint (Ex. PB) and handed over the same alongwith necessary articles and the accused to Sub Inspector Police Atta Muhammad (P.W.). In cross-examination the witness had deposed that he had received a secret information at 1.00 A.M. in Tandlianwala. The distance betweca Tandlianwala and the place of occurrence was about 13/20 miles. It is further admitted by this witness that in the Chak several persons had gathered. Excise Constable Sabir Alt (P. W. 2) was also a member of the raiding party and had attested the recovery memo (Ex. PA). S. I. Atta Muhammad (P. W. 3) is the investiga ting officer in this case. On the request of Excise Inspector Masood Ahmad P.W., he alongwith other police officials joined the raiding party and raided ths Dhari of the accused, who was caught red handed while distilling liquor. The Excise Inspector recovered the various articles vide memo. Ex. PA. The Excise Inspector also prepared complaint Ex PB and handed over the same to this police officer for registering and investigating the case against the accused. He prepared site plan Ex. PC and arrested the accused, After completion of the investigation he challaned the accused, Constable Abdul Jabbar (P.W. 4) oq receipt of complaint Ex. PB registered the formal FIR Ex. PB/t. Muhammad Anwar (P.W. 5) did not support the prosecution and was declared hostile and was allowed to be cross-examined by Prosecution Inspector. In Crossexamination he denied the suggestion that at the instance of the accused he had become hostile to the prosecution. the prosecution allegations and stated that he was falsely with the witnesses. He, however, involved in the case due to enmitv produced nu evidence in bis defence, I have heard ihe learned counsel for the parties and have also perused the entire material available on the record. 4. According to the prosecution the accused was caught red handed in actual process of manufacturing or distilling liquor and the raiding party had ecovered from the spot liquor weighing 215 oz. and three pitchers of Lahan each weighing 15 k. gs. According to the learned State Counsel, the recovery f said liquor and lahaa was sufficient to hold the accused guilty -jnder Articles 3/4 of the Order. In reply the argument of the learned Defence Counsel is that he onus was upoo the prosecution to establish beyond reasonable doubt that what was recovered from the accused was actually liquor and iahan. In ther words a mere assertion or allegation of the prosecution that what was recovered from the accused was liquor and Iahan is not sufficient but it was urther necessary for the prosecution to prove that what was recovered from the accused was actually liquor and Iahan and the proper cientific method to determine the true nature of the said liquor and Iahan was chemical analysis by a competent recognized authority, like the chemical xaminer appointed by the Government for such purposes. It is an admitted Fact that in the instant case neither out of the alleged recovered iquor nor out of the three pitchers of Iahan any sample was sent to the Chemical Examiner for analysis. A representative of the Excise Department who was resent in the Court contended that when the raiding pirty is headed by an Excise Inspector, who has also attested the recovery memo, there is no need of sending any thing to the Chemical Examiner for analysis In other words according to him, the supervision of the raid and the participation of an Excise nspector in such raid is sufficient to raise presumption in favour of the prosecution that what has been recovered from the accused is liquor and Iahan and hen the onus shifts to the accused to prove that it was not iquor and Iahan as alleged by the prosecution. Reliance in this behalf is laced upon the xplanation o para. 4,18 Punjab Excise Manual Vol. III. The said paragraph alongwith the explanation is reproduced below : 4.18 "Samples of liquor, hemp, drugs, opium and other dangerous drugs in regard to which doubt arises, should be sent for analysis and opinion to the Chemical Examiner to Government Punjab, Lahore, whose report is admissibie in evidence under section 510 of the Criminal Proce dure Code, Samples should be sent by Collectors direct and not through the Civij Surgeon All articles for analysis shall be packed arid sealed in the presence of the excise inspector himself, who shall sign a certificate in the form M. 29., in triplicate, one copy being despatched with the articles, one with the covering letter and one retained, as aa office copy. 3, The sealed articles are then placed is wooden boxes using eotfoe wool o-; bhma as packing material. Old office records and papers are quite nsuitable ; m addition to which any letters enclosed with the exhibits ere apl, to be lost or misJaid. 4. The wooden box should then be covered with cloth and carefully sewn into a neat parcel, This box is again sealed. Explanaiion : Unless this is desired by the court, samples of spirit, which are considerably stronger ihatt 20 U,P, should not be sent to the Chetnscai ExamuxiT, since it ma\ safely be assumed, froai the test isade by .the es'vise itaff, thai they arc so much above the strength of licit spirt M to be illicit beyond say possibility of doubt. Similarly,, if a working stilt lias been seised there is no need to send samples of spirit seised to the Chemical Examiner sicce thsre can be ao reasonable doubt that this spirit is illicit whether it is above or below the strength of lien spirt. la ihe of lahan, the presumption raised by section 76 of the Punjab Excise Act is that the finding of the lahan is prima-facie & proof of an offence under the Excise Act and it is for the defence to prove that the substance is something other than lahan. The presumption raised by section 76 of the Act k always a very important link in the chain of evidence against aa accused person in an excise case, and if there is any danger of it being overlooked the attention of tbs court should aiwavs be invited to It." "Sections 32, 10 and 5 of the Dangerous Drugs Act, the Opium Act, and the Punjab Opium Smoking Act, respectively, should also be brought to tee notice of the courts, in cases failing under these Acts." "Normally samples of opium should be sent for analysis to the Chemical Examiner to Government, Punjab, as provided above. In special cases in which it is considered desirable to obtain the opinion of the experts of the Opium Factory, Ghazipur, the matter should be reported to the Financial Commissioner for his orders. The instructions laid down in the second paragraph above should be observed in despatching the opium to the Manager; Opium Factory, Ghazipur. The Central Board of Revenue has fixed a fee of Rs. 16 per sample for analysis of any sample of contraband opium in the laboratory of the Opium Factory," 6, The heading of para. 4/8 is 'Chemical aaalysis' and it shows how tamples of th« excisable. 'articles should be seat for analysis and opicioa of tbe Chemical Examiner, whose report is admissible m evidence under section 510 of the Code of Criminal Procedure. A. mere perusal oi this para, is sufficient to show tbe segai significance and importance cf chemical analysis of such articles. Even otherwise wnenever any prohibited excis able article or intoxicant like liquor, labors or opium etc has been recovered from aa accused person, before the proswution cac succeed in securing the conviction of such a person, the ntuia! onus is upon the pro secution to prove beyond any reasonable doubt that what has beea recovered is liquor, lafean or id -xicaat etc, sad s,« xrsermonsd above the best known scientific method, to determine tfag nature of such article or substance is chemical analysis by the competent authority, Normti practice in such cases, as mentioned in para. 4.IS referred to above, is to send such articles to the Provincial Chemical Examiner for necessary analysis, The report of the Cheaiicai Examiner is admissible in evidence under section 510 Cr. P. C, On the production of such report of the! Chemical Examiner the initial burden placed upoo the prosecution stands discharged and the same shifts to the accused to prove that what has been recovered from him is not ia fact liquor and Sehan. etc. It is well settled principle of Islamic Jurisprudence that the initial onus in such cases always lies upon the prosecution and unless this onus is discharged, it does not, shift to the accused to prove to the contrary, in Chs instant case, as> mentioned above, tbe prosecution did not care to send any sample out of the alleged liquor and lahan to the Chemical Examiner for necessary analysis In the absence of such analysis the od.us will remain ok the prosecution. 7, It is contended by the learned State Counsel that aa Excise Inspector may be treated as an expert witness under section 45 of the Evidence Act and his statement may be considered sufficient proof to establish the nature of the articles recovered from the accused, In other words according to him, in such a situation there is no need of sending any sample for chemical analysis. An Excise official including an Excise Inspector, by virtue of his office or designation cannot be treated as an expert witness under section 45 of the Evidence Act, unless it is established that he had acquired special knowledge, skill, or experience in the science of intoxicants. According to section 45 of the Evidence Act an expert is a person, who has acquired special knowledge or skill in a particular science art, trade, profession or business, which is not common to the averag 6 man but is possessed by that expert by reason of his special study o r experience. In other words he must have made a special study of that particular subject or acquired a special experience therein i. «J, he must be skilled in any particular art, trade, or profession and have adequate knowledge of that subjict for forming opinion on subject in dispute, InJ ordinary language that witness must have specialised himself ia thai! particular field or subject. Moreover, a mere knowledge and experience may not be sufficient to determine the nature of an exeiseabse article or, substance but it will further be necessary to apply certain laboratories! and chemical tests. In the instant case Excise Inspector Masood Ahmad, in the first instance, does not claim to be an expert witness and the record is completely silent as to whether he had acquired any special knowledge or experience in the Science of intoxicants etc. There is further nothing on the record that he had applied any laboratories! test to determine the nature of liquor and lahan recovered from the accused, in this situates tbe said Excise Inspector cannot legally acd factually be held or treated as an expert witness under section 45 of the Evidence Act, If the claim of the prosecution is that a particular Excise Officer is an expert witness under the Evidence Act, the onus is upon the prosecution to bring on she record his qualifications etc, to justify his claim so that the opposite party may test his knowledge or ability in that capacitv through cross-examination. Excise Inspector, Masood Ahmad, has nowhere stated that he had acquired special knowledge or experience in this particular field. He has not even alleged that he had obtained any diploma or certificate from a competent Institution for testing such articles. The result is that the claim of the prosecution, to treat the said Excise Inspector as aa expert witness under Section 45 of the Evidence Act, cannot be accepted, and consequently the liquor and lahan allegedly recovered from the accused Shamman is aot proved to be liquor or lahan. 8. It may however be observed that for proper administration of justice, it is not desirable that the Excise Inspector who is for all practical purposes the prosecutor in a case of this type, to give such power to test the nature of the liquor and lahan etc. It is not denied that as a prosecutor, hie may be interested in the success of the prosecution case and cannot enjoy the same amount of confidence as any independent witness. In any case the ccused may be justified to doubt his bona fide. To avoid any such apprehension of the accused, the job of testing such articles should be entrusted to some ndependent agency like the Chemical Examiner. How ever, an excise official in order to satisfy his own conscious may b justified to carry out the initial test as equired under chapter-8 read with Appendix-A of the rules cnntained in Punjab Excise Manual Yol-III to determioe he ingredients of liquor and lahan to continue the investigation but ultimately report for placing it beore the Court should be obtained from the Chemical Examiner, which is admissible in evidence uoder section 510 Cr. P. C. Such initial analysis by the excise official may not be made basis of conviction of the accused person, if however such departmental official is a trained expert witness under section 45 of the Evidence Act, he should not associate himself with the investigation otherwise the accused will not have the same amount of confidence in him as in any other independent expert witness. 9. According to the learned State Counsel the statement of the Excise officer should be considered sufficient to prove the nature of iafaan recovered from the accused under section 76 of the Act. I am aot inclined to accept this contention. A mere verbal assertion by some official of the Excise or lice department that what was recovered from the accused was ahan cannot be sufficient unless it is further proved through scientific analysis by an ndependent agency that it was really lahan as defined in the Act. The fate of the case cannot be left at the mercy of such Excise or Police official. t is not denied even by the learned State Counsel that the possibility of mis-use of such power by such official cannot be ruled out. To avoid any such ituation the safer course is to insist upon the chemical analysis by some independent agency. It is not understandable why the excise department is not ollowing the normal practice of sending such objectionable articles/substance to the Provincial Chemical Examiner for necessary analysis. 10. A perusal of the above explanation to para. 4'18 shows that samples of spirit which are considerably stronger than 20 U. P. hould not be sent to the Chemical Examiner, since it may safely be assumed from the test made by the Excise Staff that they are so much above the strength of licit spirit as to be illicit beyond any possibility of doubt. in the instant case,, it is an admitted fact that the Excise Inspector had made no test whatever to determine the strength of the hquor of lahan. In the absence of such test even first part of this explanation cannot be pressed into service in the present case, 11. The above quoted explanation further shows that if a working still has been seized, there is no need to send samples of spirit seized to the Chemical xaminer, since there can be no reasonable doubt that this spirit is illicit, whether it is above or below the strength of lieu spirit. Further in the case of lahan he presumption raised by section 76 of the Punjab Excise Act, 19i4, is that the finding of the lahan is Primo acie a proof of an offence under he Excise Act and it is for the defence to prove that the substance is something other chaa Lahan. No doubt, according to the departmental nstructions contained in Chapter 8 read with Appeudex A of the Punjab Excise Manual Volume III certain Excise officials are allowed to carry out certain nitial tests and they are supplied testing instruments for this purpose, but the Excise Inspector, Masood Ahmad, had made no such test whatever and, there fore, the prosecution cannot take any benefit of the first part of the explanation to para 4. 18 referred to above. Since the prosecution hasi alleged that the accused was manufacturing/distilling illicit liquor and the same was recovered from him by tne raiding party, the onus was upon the rosecution to prove through some scientific chemical analysis that what was actually manufactured or distilled by and recovered from the accused was iquor and lahan wtoich is prohibited under the law. In the absence of some scientiiic chemical analysis the initial onus will remain on the rosecution and consequently the burden will not shift to the accused. 12. In the explanation to para. 4.18 reference has also been made to section 76 of the Punjab Excise Act (hereinafter referred io as the Act) which s reproduced below: S. 76. "Presumption as to commission of offence ib certain cases - Whenever any person is found in possession of (a) any still, utensil, implement or apparatus whatsoever or any part or parts thereof, such as are ordinarily used for the anufacture of any intoxicant other than tari. (b) any materials which have undergone any process towards the manufacture of an intoxicant or from which an intoxi cant has been anufactured. It shall be presumed, until the contrary is proved, that his possession was in "ontravention of the provisions of this Act." According to the learned defence counsel, the latter part of the said explanation regarding the presumption under section 76 of the Punjab Excise Act, 1914, the same should be struck down as it is against the well settled principle of Islamic Criminal Jurisprudence that onus is always upon the prosecution to prove the guilt of the accused. I do not agree with the learned defence counsel because such presumptions are permissible even under sections i!4 and 103 of the Evidence Act. However, before m prosecution can rely upon such presumption_ toe burden will still Me upon the prosecution to sirictij' prove the ingredients of the said section namely (I) legal possession of the accused of certain untensils, implements or apparatus etc, t (2) that such utensils, implements etc. ordinarily used for the manufacture of any intoxicant (other than tari], (3) recovery of any material which has undergone any process towards the tnaoufacture of any intoxicant or from which an intoxicant has been manufactured, {4} to prove through proper scientific chemical analysis that what has been manufactured is intoxicant or which has undergone any process towards the manufacture of an intoxicant, and (5) the ingredieats of the term manufacture' as defined in section 3(16) of the Act. When all these ingredients are fulfilled then the prosecution can rely upon the presumption raised under section 76 of the Act and onus will then shift to the accused and the accused caa be convicted under section 6!(C) of the Act or Articles 3/4 of the Order In the instant case the prosecution has not satisfactorily proved these ingredsents against theaccused through reliable independent evidence, 13. The term Mahan' has not been defined in the Order or Punjab Excise Act, 1914, However, the word 'liquor has been defined its sec tion 3(14} of the Punjab Excise Act, 1914, as under;- S. 3 (14) "liquor' means intoxicating liquor and includes ail liquid consisting of or containing aicohal ; also any substance which the Provincial Government may by notification declare to be liquor for the purposes of this Act." A perusal of the above shows that the definition of'liquor' given, in the Act is not exhaustive but power is given to the Provincial Government to declare any substance by notilicatioa in the official Gazette as liquor for the purposes of the Act, The Punjab Government in exercise of the said power, vide Notification No, '5663-E & S dated the 26th October, 1932 has enacted 'The Punjab Excise Liquor Definitions 1932. Rule 1,1. and 1,2 of the said definition are relevant and are reproduced below : "!.! The substance commonly known as iahao. of whatsoever ingredients such substance may be composed, whether it has undergone the process of distillation or not, shall be 'liquor' for the purposes of the Punjab Excise Act, i of 1914,""1.2 Tae following shall, for the purposes of sections 18, 24, 26, 27, 30 and 64 of the Punjab Excise Act, I of 1914, be. deem ed to be 'country liquor and 'foreign liquor' respectively : "Country liquor" means all liquor other than rectified spirit, denatured spirit and perfumed spirt not included in the definition of 'foreign liquor', and also includes the substance commonly known as lahan as above described."Thus according to the above provision the word 'lahan was included in the definition of 'liquor' and 'country liquor' for the purposes of the Punjab Excise Act, 1914.14, As mentioned above, the word 'lahan' is not defined under the Prohibition (Enforcement of Hadd) Order 1979. However, the term 'intoxicant' has been denned under Article 2 (g) of the Order in the following "iri.:o,!cani' means an article specified in the Schedule and injlvdii 'intoxicating liquor' and other article or any substance svhich the Provincial Government may, by notification in ihe official Gazette, declare to be an intoxicant for the purposes of this Older." The schedu;.; referred to above is also reproduced below : "The Schedule ,i) Tiie leaves, small stalks and dowering or fruiting tups of the Indian hemp plant (cannabis satiya L), including a!I formsknown as b/iang siddhi or ganja. (1) Charas, that is, the resin obtained from the Indian hamp plant, which has not been submitted to any manipulations, other than thosenecessary for packing or transport, i'3'i Any mixture, with or without neutral njaterials, of any of the articles mentioned in entries I and 2, or any drink prepared therefrom. ?4) Opium and opium derivatives as defined in the DangerousDrugs Act, 1930 (I! of 1930), Coca leaf and coca derivatives as defined in the aforesaid Act, Hashish." Thus the expression 'intoxicating liquor' has been included in the definition of'intoxicant'. The expression 'intoxicating liquor' has beeo further defined in clause (k) of Article (2) of the Order as under : 'intoxicating liquor' includes today, spirits of wine, beer and all liquids consisting of or containing alcoho! normally used for purposes of intoxication, but does not include a solid intoxicant even if liquified."Reading these definitions together, it can safely be inferred that the word lahan is included in the definition of intoxicating liquor as given in clause (hi of Article 2 of the Order, According to the prosecution what was recovered from the possession of Shamman appellant was liquor and lahan. No doubt the recovery memo and the witnesses of the said recovery have mentioned the word liquor and lahaa but it is an admitted! fact that no sample out of the said liquor or lahaa was sent to thef Chemical Examiner, Punjab, Lahore for necessary analysis to determine! their true nature. Even otherwise, no laboratorical test was carried out! to determine as to what was recovered from the appellant was actually, liquor and lahan. In the absence of such chemical analysis, it is not safe! to hold that what was seized from the accused was really liquor and Sahan as defined by the statute. 15. For the foregoing reasons, this appeal is accepted, the conviction! and sentences of Shamman, appellant are set aside and he is acquitted ofL the charge. He is already on bail and his bail bond stands discharged, J (Aq, By.) Appeal accepted.
PLJ 19S5 FSC 40 j Appellate Jurisdiction] Present : FAKHRE ALAM, J PLJ 19S5 FSC 40 j Appellate Jurisdiction] Present : fakhre alam, J TAHIR SHAH and AnotherAppellants versus THE STATERespondents Criminal Appeal No. 33-K of 1984, decided en 22-11-1984, (i) Offence of Ziaa (Enforcement of Hadood) Ordinance (VII of 1 979} S. 12 read with Pakistan Penal Code (XLV of I860) S. 377 SodomyOffence ofConviction forChallenge ioBoth accused taking victim on motor-cycle and then subjecting him to carnal intercourse Victim correctly picking accused up in identification parade and also affirming their involvement in case in his statement before courtDoctor also finding sodomy having been committed with victimNo suggestion as to implication of two accused on prompting of police or victim having any enmity of his own to charge them falsely put to him-Police department also not shown to have falsely implicated one of police constables in caseHeld: Offence under S. 12 of Ordinance Vll of S979 and S. 377 PPC standing proved to hilt, conviction and sentence under both charges to be maintained. [Pp. 42 & 43}A & C (ii) Pakistan Penal Code (XLV of I860) S. 365Kidnapping with intention to wrongfully confineOffence ofBoth accused abducting accused in order to subject him to carnal intercourse and allowing him to go after satisfying their lustHeld: Intention to confine victim having not been proved, conviction and sentence under S, 365 to be set aside. (P. 4318 Mr. Munawar Malik & Mr. Mahmood Iqbal Advocates for Appellants. Syed Murtaza Hussain, Advocate for State. Date of hearing : 22-11-1984. judgment Abdul Aziz a police constable and Tahir Shah a Ricksha driver were proceeded against under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and Sections 377, 365, 170 of the PPC. They were tried by the Additional Sessions Judge XI, Karachi who vide his Judgment dated 31-7-1984 found both guilty under all the four counts and each was sentenced to 5 years R, !., whipping numbering 30 stripes and a fine of Rs. 1000/- or in default to three months R I. under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, under Section 37 PPC to 5 years R. I., under Section 365 PPC to one year R. I. and a fine of Rs 500/- or in default to undergo U months R. I. and under Section PO PPC to one year R. I. The sentences were ordered to run consequently. The \vord consequently posed difficulty for rae to find out whether it means consecutively or concurrently. By filing a joint appeal both have questioned their convictions and sentences. 2. Briefly stated the prosecution story that can be gleaned from the evidence brought on record is that the first informant Shabul Hatnid alongwith is nephew Salim Naz a boy aged 16/17 years, after visiting his niece at Soldier Bazar Maternity Home, Karachi on 33-8-1983 at about 12,30 a. m, was aiting for a bus near round about of Purani Numaish on M. A Jinnah Road, Karachi, when two persons riding on Suzuki Motor- Cycle arrived there and informed the first informant that they were police officers and his nephew Salim Naz was a thief, They searched the first informant and secured a sum of Rs. 100/-from his pocket who was told to go to his house,, whereas they took the boy Salim Naz towards the Police Station. The first informant by riding a bus went to his home. About 5.00 a. m. Salim returned home and informed the complainant that both the persons instead of taking hJm to police station, took him to a Nursery where they subjected him to carnal intercourse against the order of nature. The complainant took his nephew to Police Station, where the complainant lodged the first information report. On 27-8-1983 Raja Muhammad Iqba! S. I. Anti. Burglary Pol-ice Liaquatabad Division, Karachi arrested both the accused. Later they were delivered to Soidier Bazar Police for further necessary action. After necessary investigation they were challaned to Court to face the trial. 3. Doctor Liaquat (P. W, 7) medically examined Saiim Naz, a boyaged 15 years, who opined that sodomy was committed with the boy. On 28-8-j983 the same Doctor examined Tahir Shah and Abdul A/i? appel lants who found them fit to perform sexual ac(. 4. The medical certificate Ex-25 issued by Doctor reveals that redness and congestion were found around anal region. Tenderness around anus was present. The boy had passed stool and had changed the clothes. After observing all these signs the doctor was of the view that the boy was subjected to sodomy, 5. Abdul Haleem Magistrate held identification parade of the two accused on 4-9-1983. Salim victim was summoned who correctly identified both the accused who had committed sodomy with him, Shahul Hatnid the uncle of victim boy at the trial reiterated what was d«posed by him in First nformation Report, He stated in Court that both the accused were the same persons who had taken his nephew when they were waiting for a bus at urani Numaish M. A. Jinnah Road , Karachi . Salim Naz the victim appeared as second prosecution witness whose version at the trial was tnat he longwith his uncle Shahul Hamid on 13-8-1983 at about 12.30 a. m. was waiting for a bus, two persons approached them on riding a Suzuki Motor ycle who introduced themselves to be police personnels. They told his uncle that Salim is a thief. One of them showed him his police card, Both irected his uncle to go away and they asked him to ride th.e Suzuki Motor-Cycle as they intend to take him to Police Station. By riding Motor-Cycle hey took him to a Nurssry at Qiidabud where taking him behind bushes both sodomized him. Leaving him on the road boch the accused weni way. Oo reaching the house at 5.00 a. m. he informed his uncle who took him to Police Station where his uncle lodged the First Information eport. H; was referred to a Doctor for medical examination. He also showed the police thi scene of crim;. Later he was asked to identify he culprits. An identification parade was held and he correctly picked up both the accused to be the culprits who had subjected him to carnal tercourse. Muhammad Man/ i P. W. 6'\ was'duty officer at Police Station Soldier Bazar, Karachi. He correctly recorded the first information report on 53-8-1983 at the instance of Shahul Hamid. Salim the victim was in his company who was sent to Hospital for medical examination and treatment. He prepared the site plan of the place of occurrence. He also applied for the holding of an identification parade. Both the accused were got medically examined. The case was ultimately sent to Court for trial. 6. Abdul Aziz accused a constable in Police Department when examined under Section 342 Cr. P. C. denied the charge and stated that he was falsely mplicated in the case at the instance of Javaid a police informer who is the brother of accused Tahir Shah. Tahir Shah also plead ed innocence and tated that he was involved in this case at the instance of his elder brother Javaid Hasnad with whom he was not having cordial relation. Both the accused stated hat they were subjected to maltreatment by the police. Three witnesses were examined in defence. Ali Mardan (DW-1) had stated that he knew only ccused Tahir Shah. One day at about 4.30 p. m. both the accused were apprehended by Antj Burglary Staff of Liaquatabad Police. While pprehending the police informed him that both were wanted in many dacoity cases. Ghuiam Rabani second defence witness gave a similar version. Doctor qbal was also examined as defence witness No. 3 who deposed that on 1-91983 he examined Ta&ir Shah and found the following injuries on his person; 1. Abrasion one and half inches x 1/8" over lateral aspect of left fore-arm, 2. Abrasion 1/3 x 1/3 on lateral side of right foot, 3. Abrasion 1/2 x 1/2 over right shoulder, He also examined on the same day Abdul Aziz accused and observed the following injuries. 1. Abrasion 6" x !£" around the lower part of left fore-arm. 2. Abrasion I" x y over lowei part of dorsum of right fore-arm. 7. The learned counsel for the appellant submitted that according to the First Information Report one of the culprits was of white complexion, whereas ccording to the victim none of the accused had white camplexion. It is, therefore, a case of false involvement of the accused at the behest of the police who as against the accused. The contention lacks substance for the reason that during the night the complexion of the accused could not have been correctly scertained. Moreover the first information report was lodged by the uncie of the victim boy and not by the boy himself. The victim was taken on a Suzuki otor-Cycle by the two accused and then both subjected him to the carnal intercourse. He correctly picked them up in the identification parade and ffirmed of their involvement in the case by stating so in Court that these were the persons who had sodomized him. No suggestion was put to the victim as o the implication of the two accused on the prompting of the police or that he had aoy enmity of his own to charge them falsely. One of the accused amely Abdul Aziz was serving as constable in the Police Department. There is nothing to suggest as to why his department would connect the case against him. No question was put to the Investigation Officer to show why the police was interested in falsely implicating the accused in the crime. It is the case of the appellants that they were implicated by Ants Burglary Police Liaquatabad who caused them injuries which are of simple m nature. Even if it be accepted to be conect, there is nothing to show that the police of Liaquatabad Station had any axe of its own to grind against the accused. The role piayed by Liaquatabad Police is above board and it has not been ques tioned at any stage The injuries.,a!iegediy caused to the appellants during tbesr arrest by Burglary Police would not reflect oq the veracity of the prosecution case. 8. Coming to the offence committed by the accused, 1 find that Section 170 PPC is not attracted to by the facts of the ase. One of the accused appellants is a police officer and to say that he was personating as public servant would not be correct. Accordingly the conviction and sentence of both the appellants under Section 170 PPC is set aside and they are acquitted of the charge. 9. As regards Section 365 PPC the same is also not applicable. Both the accused had abducted the victim in order to subject him to carnal intercourse and there was no intention to confine him, Raiher it is in the B statement of the victim that after satisfying their lust the accused had, allowed him to go. Therefore, the conviction and sentence under Section! 365 PPC is set aside. Both are acquitted of this charge too. 10. However, tha offence under Section 12 of the Offence of Zinai (Enforcement of Hudood) Ordinance 1979 and Section 377 PPC staod' proved to the hilt. Convictions and sentences under both the charges are maintained and the appeal of the appellants to that extent is dismissed. 11. Whether he sentences on both the counts were ordered to run consecutively or concurrently has to be ascertained now. The learned Additional Sessions udge, Karachi mis-used the word "consequently". The closing para. No. 31 of the judgment could help us in finding out the mind of the Court, wherein t has been observed "Abdul Aziz accused is a police constable and taking the illegal advantage of government position, he alongwiifa co-accused, after nsulting and annoying the complainant, forcibly took the victim boy Salim and subsequently he and co-accused Tahir Shah committed illicit ntercourse with the boy. Thus the accused under these circumstances deserve a severe penal action, so that such offences should not be repeated in uture by the otner police personnels". t would show that the trial Judge intended to order the sentences to run consecutively and that "consequently" was is-nomer. The sentences, maintained are therefore, to ran consecutively. (TQM) Order accordingly.
PLJ 1985 FSC 43 PLJ 1985 FSC 43 [Appellate Jurisdiction] Present : B, G. N. k.azi, muhammad siddiq & malik gbulam ali, Jj ARBABAppellant versus THE STATERespondents Criminal Appeal No. 123/1 (also Criminal Reference No. 5/1) of 1984, decided on 5-11-1984. (i) Offences agaiast Property (Enforcemeat of Hudood) Ordinance (VI of 1979) Ss. 9, 6, 7 & 8Theft liable to hadd by more than one person- Offence ofConviction forChallenge to Requirement of tazkia al-shahood about witnesses being truthful persons abstaining from major sins not properly observedNo evidence recorded about value of 4.457 grams of gold on date of offenceExpert evidence also not brought on record about value of alleged stolen bullocks None of witnesses even seeing accused actually entering "/»>z" or untethering bullocksHeld : Conviction of appellant for theft liable to hadd not to be sustained, [P, 46 }A, B, D & F (ii) Offences against Property (Enforcement of Hndood) Ordinance (VI of 1979} Ss. 9 & 13Theft liable to Aa<W-Offence ofConviction for Challenge toWitnesses giving inconsistent and contradictory evidence about facts deposed to by themMany persons though alleg edly coming out of their houses after capture of thief, no indepen dent witness of locality examined at trialNo explanation on record about causing of injuries to appellantMemo of recovery of bullocks also not on recordHeld ; Contradictions and inconsistencies in prosecution evidence creating doubt about case against accused, benefit of same must be given to appellant. [Pp. 47 & 48] H & J (iii) Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979) S, 7Theft liabie to haddPtoof ofProof of theft liable to hadd in case not in forms indicated in S. 7 of Ordinance Held : Sharia punishment not to be given until crime be properly proved through prescribed and authentic evidence. [P. 46 ]G (» Offences against Property (Enforcement of Hndood) Ordinance (VI of 1979}
S. 7WitnessCredibility ofMode of inquiry ofCourt asking each witness whether he respected court and whether he committed no major sinHeld : Inquiry into antecedents of witnesses having been envisaged under S. 7, requirement of tazkiya al-shahood about witnesses being truthful witnesses not properly observed, [P. 46]B &, C (v) Offences against Property (Enforcement of Hndood) Ordinance (VI of 1979)-
S. 8Theft liabie to hadd by more than one person Offence of Theft of two bullocks allegedly committed by three persons- Held : Court to divide aggregate value of stolen property equally amongst ail three accused entering hirz to find out whether share of each such person amounts to or exceeds msab. [P. 46]£ Mr, M. Bilal, Advocate for Appellant. liafiz S. A. Redman, Advocate for State. Date of hearing : M 1-1984. judgment B. G. N. Kazi, J.Arbab son of Ghazi, Muslim adult, by caste Bulb resident of Garkko Taluko Pano Akil, District Sukkur, was tried on the charges, that he alongwith two others committed theft of a pair of bullocks valued at Rs. 10,000,'- belonging to complainant Abdul Majid from his hirz on 11th October, 1980 at 2 00 a. m an offence punishable under section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, (hereinafter referred Co as the Ordinance), and further that on the same date and time he alongwith two other persons voluntarily caused hurt to Sardar Bukbsfa by means of danda, which was weapon of offence, outside the house of the complainant and thereby committed an offence under section 323 PPC, The Additional Sessions Judge, Sukkur, who tried on the aforesaid charges, found him guilty and convicted him under section 9 of the Ordinance and sentenced him to amputation of his right hand from the joint of the wrist and also convicted him under section 323 PPC and sentenced him to suffer S. I. for three months and also fined Rs. 200/- and in default to suffer further S. 1. for one month. The appellant has filed appeal against the aforesaid convictions and sentences and the learned Additional Sessions Judge, Sukkur, has also made reference under section 9 (4) of the Ordinance for confirmation of the Sentence of amputation of right hand. Both the appeal and the reference are being dealt with .in this judgment. 2. The prosecution case briefly stated is that complainant Abdu! Majid s/o Haji resident of Village Kirir Indhar reported at Police Station Pano kil on 11-10-1980 at about 7.00a.m. that he had tethered two bullocks, a cow and buffalow the previous night within the compound of his house and he, bis brother Allah Jurio and nephew Sardar Bukhsh were sleeping nearby when at about 2 a, m. he woke up on the barking of dogs, and saw three persons committing theft and taking away his pair of bullocks. He raised cries which attracted bis brother Allah Jurio his nephew Sardar Bukhsh and Abdul iz s/o Muhammad Luqman Indhar who ran after the thieves and chased them, Abdu! Aziz flashed his torch but the thieves were not identified as they were not known to them. Sardar Bukbsh however caught hold of one of the thieves and other thieves ran away towards the north leaving he bullocks. The thief who as caught had struck Sardar Bukhsh a blow with lathi causing injury to his head. In the morning the complainant took the thief who had disclos ed his name as Arbab s/o Ghazi Bulloo resident of Lalpir to the Police Station alongwiin the lathi, torch and bullocks and lodged F. I. R. with Syed Sbahid Hussain, SHO, Pano Akil. The witnesses had accompanied the complainant. The S. H O after registering the report of the com plainant arrested the accused and prepared such memo. (Ex, PA), The accused had injuries ob his person and was referred (Ex. PB) to Dr. Yar Muhammad, M. O, Pano Akil for examination and certificate. P. W, Sardar Bukhsh also had injures and such Memo. (Ex. 12.C) was prepared and he too was referred to M, O, (Ex. 12-D). The S. H. O. recorded statements of witnesses and prepared memo, with regard to torch produc ed before him (Ex. 12-E). The bullocks were returned to complainant on his executing superdigi bond He visited the place of incident and prepared uch memo. (Ex. 10-A) before mashirs. After completing investigation Syed Shafaid Hussain S. H. O. sent up the accused appellant for trial. 3. The accused appellant did not plead guilty to the charge and at that early stage took the plea also that both the bullocks produced by the complainant before the Coort would be of the value of 1300-1400 rupees only and that he was not a thief nor did he know any thing about the alleged incident. 4. At the trial P. Ws. Abdul Majid, Sardar Bukhsh, Abdul Aziz, Mazhar Mashir of vardat, besides Dr. Yar Muhammad, M. O. and Syed Shabici Hussain, T, O., were examined, Accused Arbab in his statement before tbe Co;m denied aii the alligations about the theft and stated that complainant was jnirascal towards him as they had dispute over Sand. The complainant party had filed alse cases against him in which he had been acquitted. He produced certified copies of order of acquittal and oi deposition of Baeiial. it was further his case that on the day of incident he was coming from Pano Aki! and going towards his village when at Pirwah the complainant and P, W. Sardar Bukhsh who were coming from their village attacked him aad forcibly took him to their village from where he was takea to police station. The incident was seeo by Saleem, He had examined Saleem as D. W. who had supported his version. 5, We have beard the arguments of the iearaed counsel of the parties sad gone through the record of the trial, it li apparent thai the convic tion of the appellant for theft liable to kadd cannot be sustained for the following reasons : (!) That the requirements of Tazkiya Al-Skttkoad about the wit nesses being truthful persons abstaining from major si as (kabair) were not properly observed. In explanation to Section 7 of the Ordinance it has beers made quite clear that tazkiv-a^Ai-Shi/hood means the mode of inquiry adopted by a Court to satisfy itself as to credibility of a witness. It is Jfurther clear thai an inquiry info the antecedents of the witnesses is 'envisaged bat the mode adopted in the instant cass of merely asking each .witness a question whether he has respect for tbe Court and whether he has not commuted a majoi siu is not the sort of inquiry envisaged, (2) That the provisions of Section 6 of the Ordinance regarding the nisab have not been complied with although even at the stage of charge the ppellant had sought to ponit out that the alleged stolen property did not constitute nisab. No e<-'u>ence was recorded about the value of four decimal our live sevto (4 457} gnrm of guld oa the date of the offence of which burden lies on the prusecui;ou and ao expert evidence was brought a she record, about the value ,;«1" aJieged stolen bullocks, (3) That there is no indication oa record that the provisions of Section B of tne Ordinance were taken into consideration though theft of two ullocks was allegedly committed by three persons, /. e. more than one person, and the aggregate vasue of stolen property had to be divided equally mongst all the three of them if they had entered the hirz and each, of them gets a share which amounts to, or exceeds, the nisab, (4) What is. even more important; there is no evidence at all about jtioy of tbe witnesses seeing accused actually entering "Hirz" or untether- ' i| the bullocks from pegs to which they wers thethered. Admittedly the Ithree thieves taking away tits bcsioe'cs were chased, aad the evidence eva jof the complainant is that the appeila&t was Captured outside the courtwhile two other thieves were also chased and ran away towards (north leaving the two bullocks,' 6, Under the circumstances it is clear that the proof of theft liable to hadd is not in the forms indicated in section 7 of the Ordinance and there are loop-holes or defects in the same as according to the law of G sharia punisbajent is not given until the crime is properly proved through prescribed and authentic evidence, in offences punishable with Hudood there are Ahadis of tha Holy Prophet (PIMJM) as under :--"Drive off aSi the Hudood from the Muslim as far as you can, If there is any place of refuge for him, let him have his way, because the judge's mistake in pardon is belter than im mistake in punishment, (Misqat Vol. II, p, 454), "Remove Hudood if there arc doubts in their proof." Cfirmizi Vol. II, p. 146), The Muslim Jurists are united id the opinion that mere suspicion, blame or doubt may lead to mistake or wrong decision and when proof Is so based the offender should not be convicted or punished. (Nai-nl-Qttar Vol. VII, p. 113). 7. . We have also given full consideration to the provisions of .Sectionj 13 of the Ordinance about liability of tazir but there are discrepancies and! weakeness n the case which cieate doubt the guilt of the appellant,! benefit of which must be given to him. For instance although complainant] Abdul Majid stated hat fie, Sardar Bukhsh, A!lad Jurio AbduJ Aziz were sleeping in the c jurtyard of his bouse at liv; lime of the occurrence and further that Abdul Aziz is his elative and had been residing with him in the same boose sincj 2 years prior to the date o4' inciciint, and P, vV, Sardar Bakhsh aiso states that Abdut zn is their relative residing in the same house since 4 : 5 years prior 10 the incident, Abdui Aziz stated he was sleeping in his brick-kiln so a place 5/0 paces from he courtyard ci' the complainant and ht has definitely stated that corttpia:0«ni Abdul Majid and P. W. Sardar Bakhsh are oniy his caste-S'elSows and not elatives. In his cross-examination he also admitted that his viliags is one furlong away from the house of the cornpiaioaoi and is Kaown as Khuda Bux village and ho resides about 20-25 paces away in front o house of ccocspJiinarit where hsiias kiln and had been residing tbere 12 months prior to the incident and further that he was at th« isme of the incident ia the "Chhaprd" whereas P Ws. Nos. i and 2 were sleeping in their houses. There is nconsistent and contradictory evidence of the diifeieiu witnessss about the facts cjesposed to by them, fvr instance it was the defence version that ccused was going to his village from Pano Aqii when he was attacked by Abdul Majid and Sardar Bukhsb, near Pir Wah, The conip'ainant at one stage had taled ibat Pir Wah is About 2h furlongs to the north of his hou»e but later denied ia his crosj-cxamumiion that there was any Pir W,.h in the entire village or near he village. According'to the complaina nt th:re are 2/3 houses near his house and many persons had come after capture of t:be thief but he admits that ae oe? not remember their names. No independent witness of che iocahiy was exasnined at the trial, 8. According to the statement in F, i. R. Che report was lodged at ? a. m. and it is the version of the complainant fust the incident ook place at 2 a a), and that he had taken lae ihief to police station- aloopwith Abdul Aziz, Sardar Bukhsh and A Slab Juno after tyn.ig his hands with ope. There is no evidence as to who kept watch over the fhief from time of capture to his production at the poiice station, According to P W. Abdul ziz the hands of the accused were tried with a turban and not a rope and he had been kept \a otak. under custody before being taken to police station which hey reached at about 8 or 9 a. m. 9. Although Abdul Aziz is stated to have flashed a torch at the other two thieves none is able to say With what weapons they were ar.tied. It is not. the ase of Che prosecution that the witnesses who chased the thieves were armed with any weap-.ns, wb>.ch to say the least is unusual but it is stated that ardar Bukhsh and Majced grappled with the aopei- iant. However, Dr. Yar Muhammad of the appellant stated that all the eight injuries were caused by hard and blunt weapon. Thus there is no explanation about the causing of the injuries to the appellants. 10. Sardar Bukhsh according to the prosecution version went to police station aiongwith the complainant and since he had injuries was sent to the M. O. on the same day but Dr. Yar Muhammad stated that he had been sent to him the next day aad not on I !-!0-!980, I!, P. W. Mazhar the mashir in whose presence the vardal was shown the I. O states that co-mashir Gul Muhammad was not present there. According to him the place where the accused was caught was a place 20 paces away from the house of the complainant as shown by the complainant himself. There were no foot prints except marks of grap pling. Syed Shahid Hussain the I. O. however, stated Chat there were no marks of grappling at the vardat. 12. It is also significant to observe that no memo, of recovery of bullocks is on the record. The I. O, has also denied the statement of Dr. ar Muhammad that Sardar Bukhsh injured was sent on the next day, 13. The appellant had explained that he had dispute over land with complainant party and complainant and P. Ws were put the question in cross-examination about relationship with Abdul Hakeem, Ilyas and Bacho but they denied such relationship. The appellant also produced certified copies of judgment of acquittal and deposition of Bachal (Ex. 14-A and !4-B) which due to denial of relationship with Hyas Bach etc. do not prove enmity of the complainant aad'P. Ws with the accused .appellant. However, it is not for the accused to prove his innocence and jjthe contradictions and inconsistencies in the prosecution evidence referred jto above create a doubt about the case against the accused who is there fore entitled to the benefit of doubt. Under the circumstances we give him the benefit of doubt and acquit him of the charges. He is stated to be in jail custody and it is hereby ordered that the jail authorities should release him forthwith if he is not required in any other case, (TQM) Appeal allowed.
PLJ 1985 FSC 50 [Appellate Jurisdiction] PLJ 1985 FSC 50 [Appellate Jurisdiction] Present : muhammad siddique, J JAL AD APetitioner versus THE STATE Respondent Criminal Appeal No, 119/1 of 1984, decided on 3-10-1984. (i) Prohibition (Enforcement of Hdd) Order (P. O. 4 of 1979)- --- Arts. 3 & 4 Intoxicant Owning, possessing and sale of Con viction for Challenge to Eight packets of opium allegedly re covered from latrine of last compartment of train in absence of appellant Such latrine being (public place) accessible to any passenger travelling in train, appellant not in exclusive control or possession of sameOpium recovered not established to be owned, possessed or kept in custody of appellant Held : Mere recovery of opium from said latrine not to be sufficient to hold accused guilty under Art. 3 or 4 of Order without further evidence to connect him with said opiumAppellant not shown to have purchased or brought opium from particular person or place or concealed it in said latrine with that purpose Held : Prosecution case being full of doubts and so many links essential to establish guilt being missing, appellant to be given benefit of same. [Pp. 56 & 51]D, F, G & H (ii) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979]- Art. 4Owning or possessing intoxicantOffence of Public place Recovery of opium fromConviction forInvestigating officer reco vering 8 packets of opium from latrine of last companment of train Appellant not present at relevant time in compartment or even at platformHeld Latrine being accessable to all passengers travelling in particular compartment, same to be public place not in exclusive possession or control of any particular passenger Held further : No particular passenger like applicant to be held responsible for recovery of any intoxicant nless prosecution produces further evi dence to connect him directly with said recovery. [P, 5o]C (Hi) Prohibition (Enforcement of Hadd) Order (P O 4 of 1979) -
Arts. 3 & 4IntoxicantOwning, possessing and sale ofCon viction forChargeFailure to frameEffect ofOpium recovered from top of ater-tank of latrine of last compartment of train- No charge regarding recovery of opium from latrine, however, framed against accusedCharge ctually framed against accused not, supported by any evidence Held : Such obvious error having gone to roots of case, convictions and sentence warded to appel lant to be set aside on this short ground alone [P, 5$]A (it) Prohibition (Enforcement of Hadd) Order (P, O. 4 of 1979) Art. 4 Owning or possessing intoxicant Offence of Word "possess"Meaning ofHeld: Word "possess''in Art. 4 to mean actual physical possession and not mere constructive one Such possession, held further, should be exclusive of accused. [P. 57]£ (v) Prohibition (Enforcementjof Hadd) Order (P. O 4 of 1979) Art. 3IntoxicantSale ofConviction "or- Quashment ol"-- No witness produced by prosecution to substantiate allegations under Art, 3 of OrdsrRecord containing not even etna of evidence to support allegationsHeld : There being total aosence of any oral or documentary evidence 10 support conviction of appellant under said Article, his conviction to be quashed, [P. 5o]fi (vi) Prohibition (Enforcement of Hadd) Order (P. O, 4 of 1979)- Arts. 3 & 4IntoxicantOwning, possessing and sale of Con viction forAll three witnesses connected with recovery differing as to exact place f recoveryHeld : Such discrepancy to create serious element of doubt. [P. 5l]J (vii) Prohibition (Enforcement of Hadd) Orderg(P. O. 4 of 197jty
Arts. 3 & 4 read with Criminal Procedure Code (V of 1898) S$. 83 <& 84-IntoxicantOwning, powewinf and sale ofConviction forAbscond'enceFailure to comply with provisions re gardingEffect ofProvisions of Ss, 83 :& 84, Cr. P. C. applicable in case not invoked by trial courtHeld Alleged abscondence not to be used against appellants. [P. 58]& (viii) Prohibition (Enforcement cf Hadd) Order (P. O. 4 of 1979)
Arts. 3 & 4IntoxicantOwning, possessing and sale ofCon viction forGuilt of accused noU established beyond reasonable doubtHeld ase of prosecution being full of doubts, benefit of same must go to accused. [P. 5B1L fix) Criminal Procedure Code (V of 1898) -Ss, 83 & 84See : Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)Arts 3 & 4. [P. 58] /T Mr. Ziauddin, Advocate for Appellant, Mr. 5. M. Naeem, Advocate for State. Date of hearing : 3-10-1984. judgment This, is an appeal under Article 27 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred' to as the Order) against the impugned judgment of the Additional Deputy Commissioner (G) Magistrate,~30 Section, Attock dated 26-7-1984 whereby Jalada accused was R. 1. for two years and to pay a fine of Rs-. 2000/-or in default of payment of fine further S.I. for 6 months and also to suffer 10 stripes. R. I. for one year and to pay a fine of Rs. 1000/- or in default of pay ment of fine further S. 1. for three months. Both the substantive senten : = ot imprisonment were ordered to run consecutively. The convict was also given benefit of the provisions of Section 382-B Cr. P. C. The case property was confiscated to the state according to the rules. 2. In support of its case the prosecution produced 6 witnesses. Abid Hussain (P. W, 1) and Fateh Muhammad (P. W. 2) are tea vendors of Mehrpura, Attock City . Their version is that on the day of occurrence they were travelling from Peshawar to Attock City in the last compartment of the Thai Passenger Train, Jalada accused was already known to them. Abid Hussain (P. W. 1) has deposed that the accused Jalada boarded that compartment at Pabbi Railway Station. The accused was carrying a basket which contained gundaries (cut pieces of sugar cane). The accused went to the laterine in that compartment of the train. He came out of the laterine after some time and again sat near the witnesses. When the train reached railway station Attock City the witnesses met S. H. O. Noor Khan (P. W.) who asked about Jalada accused but he could not be traced out any where from the platform. The witness told the police officer that the accused boarded the tram at railway station Pabbi and he went inside the laterine of that particular compartment. Thereafter the said police officer went inside the laienne and beneath the water-tank, he opened a plank and recovered opium weighing 4 k, g. from there. The said opium was con cealed in the ceding, A saa>ple parcel of 30 grams was prepared out of flusaid opium. This witness has also attested the recovery memo. Ex. PA. In cross-examination this witness has admitted that besides the accused other passengers had also gone inside the laterine but he could see the accused only going to the laterine. The accused bad taken the basket to the late rine. It was a large basket. It is further admitted 63 this witness that the accused used to take down the basket containing gundaries when ever the train stopped at any railway station. The passengers used to board an d aligh from the compartment during the journey from Peshawar to Attock. The witness did not see accused at Attock Railway Station. The recovery memo was made in the absence of the accused. The police had no! taken into possession the ticket by which this witness was t ravell ing It is also admitted by this witness that he had appeared as a P.W. in three cases. He denied the defence suggestion that he bad not gone to Peshawar and did not witness the occurrence and was deposing falsely at the instance of the police. He further denied the suggestion that he was a stock-witness of the police. 3. Fateh Muhammad (P. W. 2) as indicated above, made a similar statement. He was also IravelJing in the same compartment rom Peshawar and was coming back to Attock City . He corroborated the version of Abid Hussain (P. W. 1). He has also attested the recovery memo, x. PA. In cross-examination this witness has deposed that the opium was recover ed from the side of the water-tank and not from beneath the water tank He has further stated that the people have been using laterine of that compartment from Peshawar to Attock. However neither he nor Abid Hussain sed laterine from Peshawar to Attock. According to the witnesses the bas'ket of the accused was of 3 feet diameter and the accused had taken it n the laterine in quite straight manner and had not tilted it. According to this witness the accused disappeared from Pabbi. He denied the defence uggestion that be was depoting falsely at the instance of the local police. 4. S. I. Noor Khan (P. W. 3) is the investigating officer in this case, He has more or less given the same version as already contained in the F. I. . According to him on 27-10 1982 he received secret information that Jalada accused who used to seli gundaries in the railway train com partment as carrying opium by concealing in the body of the train No. 192. He was therefore present at the platform before the arrival of that train he rain reached railway station Attock City at 12.15 P: M. He alongwith his companions started search fof the accused. In the mean time Abid Hussain and ateh Muhammad P. Ws met him and informed him that Jalada accused boarded the last compartment of the train at railway station, Pabbi and that he as carrying a basket and he went to the laterine of the said compartment of the train where he remained for some time. Accordingly the said laterine f the last compartment was searched and from the roof of the water-tank, opium weighing 4 k, g. in 8 packets was recovered. Out of that opium 50 rams of opium was separated for sample and sealed in a parcel and sent for chemical analysis. The said opium was taken into possession vide recovery emo. Ex. PA. This police officer prepared the complaint Ex. PB and sent the same to the police station for registration oi the case. After completion of he investi gation he submitted the final chaHan in the court of the Magistrate. In cross-examiuation this witness has admitted that it is not possible to keep anything between the water tank and the card wood of the ceiling and she opium was not recovered from the under bottom of the water-tank. He denied the defence suggestion that the opium was not concealed in the laterine by the accused. H C. Muhammad Khan (P. W. 4} on receipt of the complaint Ex. PB registered the forma! F, I. R. Ex, PB/l. He also received two sealed parcels from the investigating officer and first kept the same in the MaHkhan . and then handed over the same to F. C. Abdul Aziz (P., W. 3) for taking She same to the office of the Chemical Examiner, Lahore and the said F C. Abdul A/i/ delivered the same intact there, A S. 1. Hakim Khan (P.W fc) arrested the accused Jalada on 29-9 1983, 5. Jalada accused m Ius statement recorded under section 342 Cr. P. C. denied the prosecution allegations. When asked if he wanted to say any thing else, the accused staled 4, under :-- The accused, however, produced no evidence in defence." 6. The challan of the accused was put up before the Additional Deputy Commissioner (G), Magistrate Section 30. As indicated above the accused was neither apprehended at the spot at the time of the recovery of the opium from the laterine nor according to the prosecution, he was available after the occurrence. The investigating officer on 16-5-1983 submitted an application to the Court of Magistrate, for the issuance of non-bailable warrants of arrest of the accused, This prayer was granted and the required warrants were issued against the accused but even then he could not be arrested. Subsequently on 1-6 1983 the trial court examined constable Noor Muhammad who stated that he was entrusted with the warrants of arrest of the accused but he could not execute the said warrants because the accused was not traceable and his correct where abouts were not known. Accordingly on the basis of the said statement of F. C. Noor Muhammad, proclamation under section 87/i8 Cr. P. C. was published requiring the accused to appear in the conrt at specified time. Even as a result of this proclamation, the accused did not appear before the court at the specified time. The statement of F. C. Noor Muhammad was recorded on 18-6-1983 in which he deposed that he had affixed a copy of the proclamation at the conspicuous part of the house of the accused in village Khudarzai. The accused, however, did not appear before the trial court and as stated above, he was arrested by A. S. I. Hakim Khan (P. W. 6), on 29-9-198.V 1. The trial court vide impugned judgment dated 26-7-1984 convicted and sentenced Jalada accused as mentioned above. 8, 1 have heard at length the counsel for the appellant who has also taken me through the entire material available on the record. 9. In order to appreciate the exact nature of the allegations, it is necessary to examine the charge against, the accused. The trial Magistrateon 19-11-1983 framed the following charge against Jalada accused :- A mere perusal of the above charge is sufficient to belie the pro.secutiou case as subsequently put in court through the witnesses, According to the charge the allegation against the accused was that at railway station Attock, opium weighing 4000 grams was recovered from under neath the gimdaries (cut pieces of sugar-cane) lying in the basket which allegedly belonged to him. The prosecution has produced no witness to substantiate this charge and no recovery memo of the opium from underneath the gundaries lying in the basket, was prepared In the instant case, no witness has deposed that either opium was recovered from underneath the gundaries lying in the basket or the said haskel belonged to the accused, Even the said basket was not taker, into possession by the investigating officer. In fact, neither the accused nor the said basket was available at Attock City platform where the opium was allegedly taken into possession. Thus in the charge framed against the accused there i§ no meniion of any opium from the Ltenne of the las! compartment of the train (Thai Passenger Train). According to the recovery memo. Ex PA the opium was recovered from the top of the water-tank of the laterine of the last boggy (compartment) of the said train. The investigating officer and recovery witnesses have also supported this version. The result is that no charge regarding this recovery of opium from the laterine w - framed against the accused and the charge actually framed against the accused is not supported by any evidence. This shows gross-negligence both on the part of the prosecution and the court a^ nobody noted this obvious error which goes to the roots of the case and the convictions and sentences^ awarded to the appellant ar-- liable to be set aside on this short ground^ alone. 10. Even on merits the convictions of the appsMant under Article 3/4 of the Order are not maintainable Article 3 of the Order provides punishment inter-alia for 'import', 'export', 'transport', 'manufacture' or 'process' of any 'intoxicant' etc. I have minutely examined the entire material available on the record but find no! an iota of evidence to support the alcgations under Arf;ele 3 or the Order. The prosecution has produced no witness to substantiate the allegations under this Article, In other words there is tola! absence of any evidence-oral of documentary, to support the conviction of the appellant under the said Article. His convic tion under the said Article is, therefore, liable to be quashed. II. As regards the conviction under Article 4 of the Order, the words used are whoever 'owns' possesses' or 'keeps' in his custody any intoxicant". Factually according to she prosecution the admitted position is that the investigating officer recovered 8 packets of opium from th'e laterine of the last compartment (boggi) of Thai Passenger Train and at that time the appellant was not even present either in the compartment or at the platform. According to Afaid Hussam and Patch Muhammad P. Ws., the accused boarded the Thai Passenger Train on the day of occurrence at Pabbi railway station aloiigwah a basket containing gundjrics. There is even no mention of any opium either in the said basket underneath the gundaries or otherwise rn possession of the accused. He used to gat down alongwith his busker and qwuiuries at every station whenever the tram stopped at any ra.iKv.ty station. It is an admitted position thit the accused did not get dovva di railway station, Att.jck City but eiirlier he had got down with his basket and gundaries at some, other railway station but it is not known at which railway station he actually got down, if he had been present iu the train or at the platform at Attock City, he would have been apprehended at the spot by the police. The result is that at the time of the alleged recovery of opium from the laterine of the last boggi of Thai Passenger Train, Jaiada accused was neither present, in the said boggi nor at the platform of Attock City, It is further an admitted fact that during this journey other passengers have been boarding and alighting from the said compartment and they have been using the same laterine by going in and coining out from the said laterine. Thus it was not the accused alone who used the said laterine at the relevant time. Similarly there is no evidence to show that the said laterine was checked before the start of the tram from Peshawar or before the accused boarded that train at Pabbi Railway Station to ensure that opium in question was not placed in it earlier, in other words there is no positive evidence to show at what time and place and place and by whom the said opium was placed in the laterine. No witness has stated that the accused was carrying any opium underneath, the gundaries placed in his basket which he allegedly carried into the said laterine, or otherwise he kept the said opium with him before entering the laterine. Similarly no one saw the accused placing the said opium in the laterine. It is no body's case that the accused had the exclusive possession or control of the iaterine in any manner-either having the key of that ieterine with him or otherwise control over it. It is admitted even by Abid Hussaio and Fateh Muhammad P. Ws. that there were other passengers sitting in the same compartment who have been using the same laterine during the journey from Peshawar to Attock City . Thus factually admitted position is that the iaterine was accessible to all passengers travelling in that particular compartment and, therefore, it would be a public place as defined in Article 2 (I) of the Order and not in exclusive possession or control of a particular passenger and consequently no particular passenger like the applicant can be held res ponsible for recovery of any intoxicant unless the prosecution producess further evidence to connect him directly with the ^asd recovery. In this back ground it can reasonably bs held that the appellant did not own, possess, or keep in his custody the opium allegedly recovered from the laterine of the last compartment of Thai Passenger Train. The possibility that some other person might have placed :he said opium in the laterine cannot be excluded. Thus the ingredients of Article 4 have not been established satisfactorily against the appellant. It is not disputed that the onus was on the prosecution to establish the guilt of the accused beyond any reasonable doubt. In the peculiar circumstances of the case the prosecution has failed to establish that the opium recovered from the laterine was owned, possessed or kept in custody of the appellant. The prosecution has failed to connect the said opium with the appellant either at the time of its recovery or earlier from where and in what manner it was taken by the accused. The word 'possess' used in Article 4 means actual physical possession and not mere constructive possession. Moreover possession should be exclusive of the accused. By no stretch ofimagioa tion the laterine of the last compartment (boggi) of Thai Passenger Train could be said in possession of or in control of or in custody of the appellant-what to speak of the exclusive possession or control etc. The laterine was clearly a public place and, therefore, was accessible to any passenger travelling in that particular compartment of train. Thus even if the recovery of opium from the said laterine is accepted, the prosecution has miserably failed to show that the said laterine was in exclusive possession or control etc, of the appellant. If as admitted by P. Ws. Abid Hussain and Fateh Muhammad other passengers during the said journey from Peshawar to Attock, have been using the said laterine, the possibility that any of the said passenger might have placed the opium there cannot be excluded. In any case the mere recovery of opium from the said laterine is not sufficient to hold the accused guilty under Article 3 or 4 of the Order without further evidence to connect him with the said spium that he purchased or brought it from particular person or place and concealed it in the said laterine with that -purpose. As mentioned above apart from Abid Hussain and Fateh Muhammad P. Ws. the prosecution has produced no other evidence to connect the appellant with the said opium. Surprisingly the prosecution has not been able to explain as to from where and in what manner the accused brought such quantity of opium in the train. Further it is not explained how the appellant after placing the opium in the laterine himself>disappeared and got down from the train leaving the opium there. It is no dody's case that he got informa tion about the presence of the police at the railway station Attock and, therefore, to avoid his apprehension he got down at some earlier railway station. Moreover as an ordinary prudent man he should have taken the opium with him if he himself had put it there and if he had got down at some earlier station to avoid his arrest by the police. The result is that the prosecution case is full of doubts and so many links are missing in the H prosecution case which were essential to establish the guilt of the appellant. 12. Apart from above the prosecution case suffers from another infirmity on merits. According to the investigating officer the opium was recovered from roof of the water tank of the laterine in question. Same is the position in the recovery memo Ex. PA. However the witnesses of the said recovery Abid Hussain (P. W. 1) and Fateh Muhammad (P. W 2) have given different description. Abid Hussain (P. W. 1) has deposed that the investigating officer recovered opium from beneath the water-tank. On the other hand, according to Fateh Muhammad (P. W. 2) the opium was recovered from the side of the water-tank and not from beneath thei water-tank. All the three witnesses connected with the recovery of thel said opium differ as to the exact place from where it was recovered-whetherL from top or the roof of water-tank or beneath or from the side of thel aid water-tank. This discrepancy also creates serious element of doubt inj the prosecution case. Moreover it is not clear how those 8 packets of opium weighing 4000 grams could be placed either beneath or by the side of the water tank of the laterine. 13. The prosecution has also used the abscondence of the accused as corroboration against "him. However, the position of the prosecution is weak on this score also. It is an admitted fact that accused Jalada is resident of Khudar Zai Police Station, Pabbi, District Peshawar N W.F.P. Thus the residence of the accused was admittedly outside the local limits of the jurisdiction of the trial court. Now we have to see the mode of executing warrants of arrest against such an accused. Chapter VI of the Cr. P. C deals with summons and warrants of arrest. Sections 83 and 84 of the code are relevant for this purpose and the same are reproduced below : "S- 83 (1) When a warrant is to be executed outside the local limits of the jurisdiction of the Court issuing the same, such Court may, instead of directing such warrant to a police-officer, forward the same by post or otherwise to any Magistrate or District Superintendent of Police 1 within the local limits of whose jurisdiction it is to be executed. (2) The Magistrate or District Superintendent 2 to whom such warrant is so forwarded shall endorse his name thereon and, if practicable, cause it to be executed in manner hereinbefore provided within the local limits of his jurisdiction." "S. 84 (1) When a warrant directed to a police officer is to be executed beyond the local limits of the jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to a Magistrate or to a police-officer not below the rank of an officer in charge of a station, within the local limits of whose jurisdiction the warrant is to be executed. Such Magistrate or police-officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police-officer to whom the warrant is directed to execute the same within such limits, and the ocal police shall, if so required, assist such officer in executing such warrant. (2) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police-officer within the local imits of whose jurisdiction the warrant is to be executed, will prevent such execution, the police-officer to whom it is directed may execute the same without such endorsement in any place beyond the local limits of the jurisdiction of the Court which issued it." It is an admitted fact that the provisions of the above two sections which were applicable to the accused were not invoked by the trial court. The result is that even the alleged abscondence cannot be used against the accused in this case. 15. From the facts and circumstances of the case, it is abundently clear that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. The case of the prosecution is full of doubts. It is well settled principle of Islamic Jurisprudence that benefit of doubt must go the the accused. Accordingly while giving the benefiit of doubt, this appeal is accepted and the convictions and sentences awarded to Jalada khan appellant by the trial court are set aside. He is acquitted of the charge. He shall be released forthwith if not required in any other case. (TQM) Appeal accepted.
PLJ 1985 FSC 59 [Appellate Jurisdiction: PLJ 1985 FSC 59 [Appellate Jurisdiction: Present : muhammad siddique & malik ghulam ali, JJ MUHAMMAD FAROOQAppeilant versus THE STATE-Respondent Criminal Appeal No. 173/1 of 1984, decided on 17-1-1985. (i) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)
Art. 4 read with Punjab Excise ManualVol. Ill , Para . 4.19& Form M. 29 Owing or possessing intoxicant Offence of Chemical ExaminerReport ofReport of Chemical Examiner and Setter of invoice or forwarding letter not itrictly in accordance with requirement of Form prescribed by Excise Manual Held : Para graph 4.19 and Form M. 29 forming part of statutory rules and instructions issued by competent authority and being binding upon officer concerned, doubt to be created in prosecution case, [P. 69]C & E (ii) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)
Art. 4 read with Punjab Excise Manual Vol. Ill, Para. 4.9 &Form M 29 and Punjab Medical Manual Para . 587 & Appendix XXXIX Owing or possessing intoxicant Offence of Excise InspectorInstructions regarding Held : In presence of specific instructions contained in Punjab Excise Manual, Excise Inspector to be required to follow his own laws, rules and instructions issued by his department rather than general instructions of medical depart mentExcise Inspector righsly following para. 4.19 and Form M 29 contained in his own Excise Manual Held : No illegality or even irregularity committed by such Inspector in not following para. 587 and Appendix XXXIV of Punjab Medical Manual. [P. 70]F (iii) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)
Art. 4 read with Criminal Procedure Code (V of 1898) S. 103Owning or possessing intoxicant Offence of - Recovery memo.Allegation ofRequirement ofRecovery memo, admittedly attested by excise and police officials only and neither occu pants of flying coach nor residents of locality made witnesses Held : Provisions of S 103, Cr. P. C, having not been fully complied with element of doubt to be created in prosecution case, [P. 64]2? (iv) Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979)
Art. 2 (j), Criminal Procedure Code (V of 1898)S. 4 (q) and Punjab Excise Act (1 of 1914)S. 3(87) "Place"Dednition of-- Held : Scope of word "Place" having been widened by includ ing in it shed, enclosure, shop, vehicle and air-craft, flying coach (being undoubtedly vehicle) to be covered by definition of word [P. 64]A (v) Prohibition (Enforcement of Hadd) Order (P. O- 4 of 1979)-
Art. 4Owing or possessing intoxicant Offence of Guilt ofappellant not established beyond reasonable doubtHeld: Appellant to legitimate!,, claim benefit ^>f such duubt. jP. 7UjC/' (vi) Practice & Procedure
Doing certain thing in certain way Requirement of Law or statutory rules requiring officer or authority to do certain thing in certain mannerHeld : Such thing must be strictly done in that manner (otherwise serious doubts to be created in prosecution case). [P. 69}D (vii) Criminal Procedure Code ( V of 1898)
S. 103See : Prohibition (Enforcement of Hadd) Order (P. O. 4of 1979)-Art. 4. [P. 64]fl (viii) Punjab Excise Manual
Vol. Ill, Para. 4.19 & Form M. 29See : Prohibition (Enforce ment of Hadd) Order (P. O. 4 of 1979) - Art. 4. [Pp. 69 & 701C, E & F Sfi. Muhammad Saleem, Advocate for Appellant. Mr. Shamsuddin, Advocate for State. Date of hearing : 7-1-1985. judgment Muhammad Siddique, J.The Additional Sessions Judge, Rawalpindi vide impugned judgment dated 16-10-1984 found guilty Muhammad Farooq accused under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced him to undergo R. 1, for 2 years plus whipping numbering 5 stripes and a fine of Rs. lOOO/- or in default of payment of fine further R I. for 6 months He was also given the benefit of the provisions of Section 382-B Cr, P. C. The convict has challenged his conviction and sentences through the present appeal. 2. In support of its case the prosecution produced 5 witnesses. Ch. Abdul Rashid, Excise Inspector (P. W. 1) has deposed that on 27-3-1984 he was present at the Excise Check Post G. T. Road Taxila alongwith subordinate Excise Officials including Muhammad Safdar Excise Head Constable, Muhammad Anwar and Tora Baz Khan Excise constables At about 2.00 P, M. on the same day, Aftab Ahmad Police Inspector alongwith his police staff also reached there. This witness and his staff was checking the vehicles coming from Peshawar side. At about 2.30 P. M. a Flying Coach from Peshawar side reached the check-post. He checked the passengers of this Flying Coach. Muhammad Farooq accused was travelling in the said Flying Coach. Due to suspicion, this witness asked the accused to get down the Flying Coach. On his search 250 grams of heroin (p-1) was recovered from the folds of his trousers. It was wrapped in plastic envelope (p-2). About 12 grams of heroin was separat ed and was made into a sealed parcel for sending the same to the Chemical Examiner Punjab. Lahore for chemical analysis. The rest was also made into a separate sealed parcel. Vide recovery memo. Ex. PA both P. 1 and P. 2 were taken into possession attested by this witness, Tora Baz Khan and Bashir Ahmad P. Ws. He prepared the complaint Ex. PB and handed over the same alongwith the accused and sealed parcel and recovery memo, etc to Aftab Ahmad Inspector Police. In cross-examina tion this witness has btatcd that it takes about two to three minutes usuall) to complete die,king .->f a vehicle. Genera!';,, thev do not check all uk passengers h it ch;ck only those pa.ocnger-> ab^ut whom they have any suspicion. He has further deposed that he and other members of his party had not noted the number of the Flying Coach in question. He himself had asked the accused to get down the Flying Coach. He had not checked any of the other passengers because according to him checking was done only when they suspected some one. No ticket was recovered from the accused. On a Court question this witness stated that he bad enquired from the accused about the ticket but he did not reply and he could not enquire about it form the driver as the driver was allowed to drive away just after the recovery of the heroin in order to avoid in con venience to the passengers. Rs. 160;- and other articles were also recovered from the accused. The cash was recovered from the pocket of the trousers. He denied the defence suggestion that the accused and two other persons were hauled up between 10.00 A.M. and 11.00 A.M. and they were arrested on suspicion. It is further denied by him that the accused was having with him a ticket on which the name of the passenger, date and time of departure of the Flying Coach was recorded. He denied the suggestion that he had destroyed the said ticket. It is further denied by him that the heroin was not recovered from the accused. 3. Bashir Ahmad Head Constable (P. W, 2) Police Station Taxila has stated that on 27-3-1984 in his presence, a Flying Coach coming from the side of eshawar was stopped at Check Post Taxila by Abdul Rashid Excise Inspector. Some other police and Excise Officials were also present there at hat ime. Abdul Rashid Inspector brought down the accused from the said Flying Coach. The accused was searched by Abdul Rashid Inspector and as a esult 250 grams of heroin was recovered from the foldsof the trousers which the accused was putting on at that time. 12 grams of heroin was made into a ealed parcel and the rest was also sealed in a parcel. The said heroin was wrapped in a plastic envelope (p-2). The envelope and the heroin were aken into possession vide recovery memo. Ex, PA which was signed by this witness. It was also signed by Tora BazKhan Excise Constable. In ross-examination this witness was duly confronted with his police statement recorded under section 161 Cr. P. C. This witness did not know the number f the Flying Coach and he did not know any other officials present there had or had not noted dovvn thenumber. In cross-examination this witness as further stated that the copy of inspection note Ex. DA was not in his hand. However, it was signed by him at the end. In fact he had certified that it was orrect copy of theinspection note. This document was in the hand of Ahmad Hassan Police Constable who was posted at police station Taxila. It is urther, admitted by him that the report under section 173 Cr. P. C. was in his hand and thecopie- of the statements of Tora Baz Khan, Bashir Ahmad H. C x. DB and Ex. DC respectively which were supplied to the accused, were prepared by him. Copies of statements of Malik Muhammad Amir M H. C and Muhammad Aslam F. C, which were supplied to the accused and whichhad been shown to him, were in his hand, But they were signed by Aftab Ahmad. It is also deposed by him that on 27-3-1984 he had come to Rawalpindi in the morning. He further denied the suggestion that he had returned from Rawalpindi at 415 P. M. and at that time Muhammad Ismail F. C was with him or that he had recorded his arrival at the police station in that munner. ft is also admitted by him that he had been appearing before the trial court with record of the case at the time bail petitions on behalf of the accused were heard He denied the ilrfence ;:cgesli -si that he was not present initiated against the accused. He, however, has admitted that he had written the 'ziminis at the direction and that the dictation of Aftab Ahmad Inspector Police, It is denied by him that the ziminis were prepar ed at the police station without the direction and dictation of the S. H. O. 4. M. H. C Muhammad Amir (P, W. 3) on receipt of complaint Ex. PB, prepared the forma! F I. R. Ex. PB:I. Aftab Ahmad Inspector Police had given him two sealed parcels on 27-3-1984 which he had kept intact in the Mallkhana. On 28-3-1984 he handed over the said sealed parcel to Muhammad Aslam F. C for onward transmission to the office of the cheminal examiner, Lahore . 5. F.C.Muhammad Aslam (P. W. 4) on 28-3-1984 was given a sealed parcel by MHC Muhammad Amir and he delivered the same intact in the ffice of the Excise Department at Rawalpindi . After getting a docket from Excise Office he had sent the said sealed parcel by registered post on he same day. In cross-examination he has denied the defence suggestion that he had not visited the Excise Office on the morning on 28-3- 984 and on that day he had gone to the Court of Special Judge Rawalpindi for producing record in case F. I. R No. 53/83 Police Station Taxila, 6. Aftab Ahmad Inspector/ SHO (P. W. 5) is the investigating officer n this case. He claims to be present at the Check Post Taxila alongwith his subordinate staff on 27-3-1984 at about 230 P.M. He has deposed that the excise officials had stopped a Flying Coach coming from Peshawar side. bdul Rashid Excise Inspector and an excise constable went in the Flying Coach and the accused was brought do.vn from inside the Flying Coach. he ccused was searched by the Excise Inspector and as a result 250 grams of heroin (o-l) wrapped in a plastic envelops (p. 2) was recover ed from the dab v-) of the accused's trousers. About 10/12 grams of heroin was made into a sealed parcel and the rest was also made into a sealed parcel. ecovery memo, Ex. PA was prepared by Abdul Rashid Excise Inspector. The said EKcise Inspector handed over to this witness, the complaint, the ecovery memo, memo of Jama Taiashi and the accus ed, The case property /. e, the sealed parcels were also handed over to him. This witness rrested the accused and started the investigation of the case. He prepared the rough site plan Ex PC. He handed over the sealed parcels to Muhammad mir MHC intact. After completion of the inves tigation he challaned the accused In cross examination this witness has stated that the police station as 3 or 4 miles from the Check Post. He has admitted that he did not know the number of the Flying Coach. He had asked the accused to produce the icket but he could not produce the same. He has deposed that he was allowed to dictate to his subordinate during the investigation. According to im ome of the case diaries were dictated by him to Bashir Ahmad H. C. who was also present at the time of recovery. He did not remdmber whether he statement of Bashir Ahrnad H. C was recorded by him or it was dictated to him. Statement under section 161 Cr. P. C. and report under section 173 Cr. P. C. were written by Bashir Ahmad H C, on his dictation. He denied the defence suggestion that no recovery was effected from the accused and he was not resent at the spot, vuul T.ir.i.'j ncvusr;! in hi> statement recorded nn.jt-r section 342 Cr. P. O. denied the prosecution allegations He viated uial on 27-3-!VtS-t lit ,njs h uilcd up :ilonciMtii two uiher persoio at Hie oheck post at about 10.30 A, M. He was also searched in the Flying Coach. When " asked why this case was made against him, the accused stated as under : 'I was travelling in a Flying Coach from Peshawar to Rawalpindi on 27-3-1984. At about 10.30 A. M. our Flying Coach was stopped at Excise Check-Post Taxila. I and two other un-known travellers were made to get down from the Coach. I and the said two persons were searched. The two un-known persons were allowed to go whereas I was detained at the police station, The other two un-known persons were also taken to the police station but they were allowed to go later." 8. The accused produced two witnesses in his defence. He himself appeared as D. W. 1 and stated on oath that he migrated to Pakistan as Afghan refugee about a year ago. He was Afghan National. He had to leave Afghanistan as the Russian-Forces have occupied Kabul . As a result of bombing by Russian-Air-Force, his father, his brother and his wife were killed. According to him he used to get ration from refugee camp Peshawar. His sister, who was in West Germany, was also supporting him financially. He was residing at Islamabad. His mother, his sister and his son were also living with him. He was waiting for a Visa as he was to leave-for West Germany to join his sister there. On 27-3-1984 he left Peshawar at about 9.00 A. M. in a Flying Coach. He purchased a ticket from there before boarding the Flying Coach. His name, seat number, date and time of departure was written on his t cket At about 1030 A. M. the Flying Coach was stopped at Taxila Excise Check Post. There were no police officials present at the said post at that tuna. Two or three Excise Officials started checking the Flying Coach They found a plastic envelop?, wrapped in a news-paper, lying under a seat. The said envelope was recovered from a seat ahead of him The excise officials ordered them all to get down from the Flying Coach and it was searched again by the Excise Officials He and two other perons were hauled up. He and the other two persons we.e detained at the police station for one night. The other two persons were allowed to go on the next morning whereas ha was challaned. It is alleged by him that ths police searched him and deprived him of his ticket, his money and his other belongings. He was detained at the police station for two nights. He was also beaten up by a Hjwaldar. According to him he had submitted a number of applications to police authorities from Jail protesting against his false involvement in this case. He further stated that he could not keep the heroin in his Pant or any where on his person even on that day in Court although he was wearing the same clothes f. e a shirt and a pant. In cross-examination it is denied by him that on 27-3-1984 at 2 30 P. M. he was checked and searched when he was travelling in a Flying Coach from Peshawar. It is further denied by him that 250 grams of heroin (p. 1) was recovered on his personal search and that the heroin was wrapped in a plastic envelope Ex. P. 2. He also denied the suggestion that he himself had destroyed the ticket. 9. Laaj Hussain Shah (D. W. 2) is the police constable who at the relevant time was attached with the police station Taxila. He brought the daily diary pertaining to police station Taxila dated 27-3-1984 and 28-3-1984 Exh. DD was the photostat of the entries in the daily diary reports No. 7 to 19 and Exh. DE was the photostat of the reports in the daily diary from 26 to 31. The original was seen and returned. The accused tendered in evidence report of the chemical examiner Exh. DF and copy of newspaper Nawai-Waqat dated 23-5-1984 and closed his defence. !0. The trial court vide impugned judgment convicted and sentenced the accused as mentioned above. 11. We have heard at length the counsel for the parties and have also perused the entire material available on the record. 12. The first contention raised by Sh. Muhammad Saleem the learned counsel for the appellant is that protection of Section 103 Cr. P. C. should have been given to the accused in this case. In other words the question aised is whether the said section 103 Cr. P C. is applicable to recovery of an objectionable article under the Prohibition (Enforcement of Hadd) Order, 1919. The word 'place' has been defined under Section 4 (q) of the Code of Criminal Procedure as under : "Place", "place" includes also a house, building, tent and vessel." The Punjab Excise Act, 1914 also defined this word as under : "place" includes a building, shop, tent, enclosure, booth, vehicle, vessel, boat and raft" The word 'place' is also defined by the Order under ^Article 2 (j) in the following words : "place" includes a house, shed, enclosure, building, shop, tent, vehicle, vessel and aircraft." A perusal of the above shows that the definition of word 'place' was not exhaustive in the Code, or the Punjab Excise Act, 1914 but the Prohibition (Enforcement of Hadd) Order, 1979. has further widened its scope by including in it shed, enclosure, shop, vehicle and air-craft. In the instant case, we are concerned with the vehicle because Flying Coach undoubtedly is a vehicle and, therefore, would be covered by the definition of 'place'. It can, therefore, logically be inferred that the Flying Coach in which the appellant was travelling and was searched by Excise Staff, would be 'place' as defined under Article 2 (j) of the Order. Section 1U3 Cr. P. C. deals with the search of the place and expression the 'place' has been clearly used in that section. It can, therefore, reasonablly be held that while carrying out the search of Flying Coach, the Excise Inspector Abdul Rashid was required to comply with the provisions of Section 103 Cr. P. C. and consequently the recovry memo should have been attested either by some of the passengers of the Flying Coach including its Driver and Cleaner and the inhabitants of the locality where the search was carried out. In the instant case admittedly the recovery memo. Exh. PA has not been attested by any person from the public i.e. either of the occupants of B the Flying Coach or the residents of the locality but it has been attested by the exercise and police officials only. The result is that in the instant case the provisions of section 103 Cr. P. C. have not been fully complied with and this has created an element of doubt in the prosecution case. v 13. Another argument advanced by the learned defence counsel is that in the instant case the report of the chemical examiner Exh. DF should not be-attached any importance as the same is not in accordance with the official instructions contained in the Punjab Medical Manual Reference in this behalf has been made to paragraph 587 of the Manual which is reproduced below : Para-SSI. '{!) The report of the Chemical Examiner of the results of his examination, which is admissible as evidence under section 510 of the Code of Criminal Procedure, should be in the form givep in Appendix XXXIX, To it should be attached the original letter of invoice mentioned in paragraph 585. (2) The above report will be despatched to the transmitting officer (a duplicate being retained in the Chemical Examiner's office) and should be placed with the file of the case." Report of the chemical examiner, according to this paragraph, should be in the form given in Appendix XXXIX which is also reproduced below for ready reference : APPENDIX XXXIX (See Chapter X, Paragraph 587) REPORT OF THE CHEMICAL EXAMINER FOR THE PUNJAB (Admissible as evidence under section 510 of the Code of Criminal Procedure), In the case of I hereby certify that 1 received by a packet from the of _ _____ ------ alleged to have beea despatched by him on the referred to in his office - - -------- No -- --- -dated and received by me on the ------- of --- . ----- 2. The packet consisted of a ------- .- --------- was sealed with a seal bearing the impression on the invoice hereunto attached, and reached me with --- ----- -- seals The contents of the packet were as follows ; 3, The above seals were opened in my presence and the contents of the package were duly examined by me, remaining under my immediate custody ntil the examination was completed, The poisons which 1 was led to examine for were ----- The result was as follows : No. Lahore : Chemical Examiner's Office, The Chemical Examiner." In the instant case, the letter of invoice or f orwarding letter of the Excise Department alongwith the report of the Chemical Examiner is reproduced below : M: 29 27/3.84 821 3/4 357 -1 979 - 28 3-84. 357 ^ 28/3/84 No. 2465/Exh, dated, 4-4-1984 The above packet contain Heroin, Sd/- Chemical Examiner, Government of the Punjab, Lahore , ......... ... ,A mere perusal of the above shows that the report of the chemical exami ner is not in conformity with Appendix XXXIX of the Punjab Medical Manual referred to above. In order to verify whether the said Appendix XXXIX contained in the Punjab Medical Manual is applicable to the instant case or not, we summoned Dr. Muhammad Akram Sheikh the chemical examiner Punjab, Lahore to explain this position. He has in formed us that in excise cases different forms are used which are contained in the Punjab Excise Manual. He refers to paragraph 4, 19 of the Punjab Excise Manual Volume-Ill which requires that sample should be sent for analysis and opinion of the chemical examiner to Government of Punjab, Lahore whose report is admissible in evidence under section 510, Cr. P. C. and such sample should be sent by the Collector direct and not through the Civil Surgeon. It further provides that all such articles should be packed and sealed in the presence of the Excise Inspector himself who should sign a certificaie in Form M. 29 in triplicate. The said paragraph 4, 19 is re produced below : Paragraph 4.19. Samples of liquor, hemp drugs, opium and other dangerous drugs in regard to which doubt arises, should be sent for analysis and opinion to the Chemical Examiner to Government, Punjab, Lahore whose report is admissible in evidence under section 510 of the Criminal Procedure Code. Samples should be sent by Collectors direct and not through the Civil Surgeon. All articles for analysis shall be packed and sealed in the presence of the excise inspector himself, who shall sign a certificate in the form M 29, in triplicate, one copy being despatched with the articles, one with the covering letter and one retained as an oflice copy. The Chemical Examiner will return one of the copies sent to him and endorse upon it his report. If the inspector is on casual leave or on tour for several days, the certificate should be signed by the excise officer or failing him by the treasury officer, Prosecutions, Rewards and disposal of Things Confiscated. Special care must be taken to see that each article in the package, particularly bottles, is wrapped up separately, and the following instruc tions snail be carefully observed : (!) (a) All bottles should be properly corked, (b) All articles of a solid nature should be placed in suitable con tainers, (2) These exhibits should then be properly sealed, (3) The sealed articles are then placed in wooden boxes using cotton, wool or bhusa as packing material. Old office records and papers are quite nsuitable ; in addition to which any letters enclosed with the exhibits are apt to be iost or mislaid, The wooden box should then be covered with cioth, and carefully sewn into a neat parcel. This box is again seaied, Explanation : Unless this is desired by the court, samples of spirit, which are considerably stronger tnan 20 LJ. P, should not be sent to the Chemical Examiner, since it may safely be assumed, from the test made by the excise staff, that they are so much above the strength of licit spirit as to be illicit beyond any possibility of doubt. Similarly, if a working still has been seized, there is no need'to send samples of spirit seized to the Chemical Examiner, since there can be no reasonable doubt that this spirit is illicit whether it is above or below the strength of licit spirit In the case of Lahan, the presumption raised by section 76 of the Punjab Excise Act is that the finding of the Lahan is prima facie a proof of an offence under the Excise Act and it is for the defence to prove that the substance is something other than lahan. Ths presumption raised by section 76 of the Act is always a very important link in the chain of evidence against an accused person in an excise case, and if there is any danger of its being overlooked the attention of the court should always be invited to it. Sections 32,10 and 3 of the Dangerous Drugs Act, the Opium Acf, an d the Punjab Opium Smoking Act, respectively, should also be brought to the notice of the courts in cases falling under taese Acts." According to the said paragraph 4.19 the Excise Inspector is required to fill up Form M. 29 in triplicate indicating the statement showing the details of suspected articles forwarded in excise cases to ths chemical examiner for analysis. There are 6 colutis in Form vl 29. 1st column is formal and gives serial number while colunn 2 gives the details of the excise cases in which the articles were recovered. Column No, 3 gives the description of the articles, Column No. 4 shows the weight while column No, gives the description of the seals used on the articles. The la^t column No. 6 deals with remarks. Underneath these columns, the Excise Inspector has to certify that the articles are intact and in good condition and have been carefully packed in his presence, each bottle or other articles being wrapped up separately. The foot note given in Form M. 29 is rather significant which shows that the Excise Inspector should personally sign the certificate in triplicate One copy being kept as an office copy, one copy enclosed in the package and one sent with the accompanying letterby post to the chemscal examiner, Punjab to be returr .1 c npleted by him. The Chemical Examiner is required to give his opiiv -n on the reverse of Form M. 29 which is also printed in the Manual underneath Form M. 29. Form M. 29 and the reverse of it which is to be used by the chemical examiner are reproduced below for ready reference FORM M. 29 IN TRIPLICATE Statement showing details of suspected articles forwarded ia Excise cases to the Chemical Examiner for Analysis. Serial No. Details of the excise cases in which the articles were recovered. Description | of Articles i Weight Description of REMARKS seals used on! the articles. CERTIFIED that the articles are intact and in good condition and have been carefully packed in my presence, each bottle or other article being wrapped up separately, Excise Inspector DEPUTY COMMISSIONER'S OFFICE No. DATED 19 FORWARDED To the Chemical Examiner to Government, Punjab , for favour of analysis. DISTRICT
Dated
for Deputy Commissioner. -The Excise Inspector should personally sign the certificate in triplicate. One copy being kept as an office copy, one copy enclosed in the package, and one sent with the accompanying letter by post to the Chemical Examiner, Punjab, to be returned com pleted by him. CHEMICAL LABORATORY LAHORE DATED 19 REPORT on the analysis of the sample of forwarded by
referred to in his_ No _ . __ _ ...... _ __ ...... _ dated
..._ ... _ ....... .
Opinion
__ ........
_ ... __ .... ._ _ .... __ Chemical Examiner to the Government of Punjab". Admittedly, neither Excise Inspector hot Chemical Examiner has used the pncied Form M. 29. It is verbally explained by Dr. Muhammad Akram Sheikh, the Chemical Examiner, Government of Punjab, Lahore that the printed forms may nor fee available in the local office of the Excise Office, Rawalpindi and that is why that instead of printed Form M. 29 the Excise Inspector nr,-pared his own specimen which is similar to said Form M. 29 and the Chemical Examiner gave bis opinion on Che reverse of the same, The forwajding letter or the letter of invoice sent by Excise Inspector aiongwith ths report of the Chemical Examiner has already been reproduced above. We have minutely compared this docu ment with Form M, 29 and find that technically speaking it is not a verbatim copy of the said Form M. 29, Although, most of Ibe columns of this form have been complied with yet 3a important a^pecl of this form namely undertaking by the Excise Inspector and foct note which are integral part of the form have not been included ii.< the said document by the Excise Inspector. As regards the report of the Chemical Examiner on the reverse of this document E.. PD, the report is too brief. It gives only the number, date and opinion. It is hardly m two .lines. Admittedly, this opinion is not in conformity with the specimen given in the Excise Manual aiongwith M, 29 reproduced above. The Chemical Examiner has personally explained ths reason for the omission of some colucnas ia this document by saying that it was given on the reverse of that document Bxh. PD and, therefore, there was no possibility of any mistake or doubt that she said opinion related to some other case or otherwise opinion was not genuine, We are inclined to accept Hie explanation offered by the learned Chemical Examiner due to shortage of printed forms the sample was not sent aiongwith the printed Form M, 29 arid, therefore, his report is aiso not on the -reverse of ths printed form. How ever, we find that the report lacks material informations required under the Manual. Even the learned State counsel admits that the report of the Cherrucai Examiner is rather too brief and is not ia strict conformity with the specimen given in the Excise Manusl. It is not disputed that para graph 4,19 and Form M, 29 from part of statutory rules and instructions issued by a competent authority and, therefore, binding upon officer coa cerned. It is weSI settled principle that when under the law or the statutory rules, a certain officer or authority is requited to do a certain thing ia a certain manner, it must be strictly done m that manner otherwise it will create serious doubts in the prosecution case. In ths instant case, the report of the Chemical Examiner and the letter of invoice or forwarding letter by the Erase Inspector .are not strictly in accordance with the requirement of the Form prescribed by the Excise Manual aod, therefore, it has created some doubt in the prosecution case. 14, The learned counsel still argues thai A.ppai>iix XXXIX contained in the Punjab Medical Manual contains m^re safe-guards for ; ust .im.1 proper administration of justice and, therefore, the Excise Inspector and the Chemical Examiner should have used that Appendix XXXIX and in its absence the report should be comptely ignored. We do not agree. The Eacise Department has got its own manual containing the relevant laws.^ rules and instructions framed by competent authority. id the presence of specific instructions contained in the Punjab Excise Manual, the Excise Inspector is required to follow his own Saws, rules and instructions issued by his department rather than the general instructions of the medical department. It can, therefore, be held that the Excise Inspector did not commit any illegality or even irregularity by not following paragraph 387 and Appendix XXXIX of the Punjab Medical Manual. He has rightly followed paragraph 4.19 and Form M. 29 contained in bis own Excise Manual which covers the instant case. 15. Another objection raised by the learned defence counsel against the report of the Chemical Examiner is that it does not show that it con tained more than the required percentage of heroin i.e. 0.2 percent. Reliance in this behalf is placed upon the definition of opium derivative given in Section 2 (f) of Dangerous Drugs Act, 1930 which definition has been made applicable under the schedule of the Order. Opium derivative inter alia means : "(0 ........ ..- - ............... ( » ) ("0 ......................................... (»v) (v) all preparations, official and non-official containing more than 0,2 per cent of morphine, or containing any diacetylrnorphine ;'''According to him, it was obligatory on the part of the prosecution to show that the alleged heroin recovered from the appellant contained more liian 0.2 per cent of heroin. We hav; given our anxious consideration to trie said clause but are unable to agree with the detence counsel, Tnis percentage relates to morphine only. We are told that diaceiylmorphme and diamorphine are also the names of heroin. Morpruns is different from heroin, A persual of clause (v) of Section 2 (f) shows that the words "containing more than 0.2 per cent' relate to morphine only and not cover diacetylrnorphine. The word "or" separates these two items from each other. Further we find that the use of the word "any" betore diacetyl rnorphine in this clause is significant to show that no particular percentage is required so far diacetylmorphirie or heroin is concerned. The intention of the legislature by using the word "any" is clear. Heroin or diacetylmorphine whatever its percentage is prohibited. In other words, there is complete prohibition of heroin and diacetylrnorphine irrespective of any percentage. The words "0.2 per cent" are appiicaoie only to morphine while no particular percentage is prescribed for heroin or diacetyhnorpmne, The language used in this sub-clause has made the intention of the legisla ture crystal clear. We, therefore, feel no hesitation to repel this contention. 15. For the foregoing reasons, we find that ths prosecution has 1101 ibeen able to establish the guilt of Muhammad Farooq appellant beyond treasonable oubt. It is well settled principle of Islamic Jurisprudence Jthat benefit of doubt must go to'the accused. In the instant case, thelappellant Muhammad arooq an legitimately claim the benefit of that doubt. Accordingly, while giving the benefit of doubt to Muhammad Farooq appellant, we accept this sentences ndacquit him of the charge- He shall be released forthwith, if not required in any other case, (TQM) Appeal accepted,
PLJ 1985 FSC 71 [Appellate Jurisdiction] PLJ 1985 FSC 71 [Appellate Jurisdiction] Present ; muhammad siddique & malik ghulam ali, JJ MUHAMMAD YAQOOB and AnotherAppellants versus THE STATERespondent Criminal Appeal No. 15/L of 1984 (also Cr. PSLA No, 1/L of 1984), decided on 28-11-194. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) S. 10 (2) read with Family Courts Act (W. P. Act XXXV of 1964)Ss, 5 & 12Zina liable to taazir Offence ofValid Nikah Plea of -Family CourtDecree of--Effect of Appellant (Mo. 2) contracting marriage with other accused after obtaining decree for jactitation of marriage against PWSuch decree attaining finality and (still) holding fieldHeld : No exception to be taken against judgment and decree of Judge Family Court in criminal proceedings in circumstances of case Held further : Principle of res-judicata being attracted, trial court not to be legally competent to nullify effect of judgment and decree of Family Court. [P. 82],4 PLJ 1984 SC 192 rel. (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) -
S, 10 (2) read with Family Courts Act (W. P. Act XXXV of 1964)Ss. 5 & \2-Zina liable to taazir Offence of Valid Nikah Plea ofFamily Court -Decree ofValue ofJudgment and decree of Family Court in jactitation suit filed by accused against PW attaining finalityHeld : Such PW not to claim accused as his wife and his claim regarding his marriage with her not to be even enter tained Appellants being major committing no offence in marrying each other and in committing sexual intercourse as bTusband and wifeHeld : Conviction and sentences of both appellants to be set aside. [P. 84]£>, E & F PLJ 1984 SC 192 'rel. (iii) Family Courts Act (W. P. Act XXXV of 1964)
Ss. 5 & 12 read with Evidence Act (I of 1872) Ss. 41 & 4 Family CourtDecree ofEffect of Judgment and decree for jactitation of marriage passed by Family Court obtaining finality Held : Such judgment and decree being judgment in rem to be con clusive proof of matter in question [P. 831$ (iv) Family Courts Act (W. P. Act XXXV of 1964) Ss. 5 & 12Family CourtJudgment and decree of Binding nature of Family Court vested with exclusive jurisdiction to adjudicate upon suit for jactitation of marriageHeld: Judgment of such court being judgment in fern, same to have binding effect upon criminal couns, [P. 84JC (v) Family Courts Act (W. P. Act XXXV of 1964) ,S, 5See : Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)~S. 10 (2), [Pp.' 83 & U]B, D, E & F (vi) Evidence Act (I of 1872) . ... Ss. 41 & 4Sec ; Family Courts Act (W. P, Act XXXV of 1964) - Ss. 5&12. [P. 8jj£ Mr. A/tab Farrukh. Advocate with Mr. Abdul Shakoor, Advocate for Appellants. Mr, Shahbir LahL Advocate for Slate, Date of hearing : 28-11-1984, judgment Mohammad Siddkjtie, J.This is an appeal under Section 20.of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (hereinafter referred to as the Ordinance) against the impugned judgment of the Additional Sessions Judge, Faisalabad dated 11-1-1984 whereby Muhammad Yaqoob and Mst, Shamiai Akhtar accused were found guilty under Section 10 (2) of she Ordinance aad each sentenced to R. I. for 6 years plus whipping numbering 20 stripes and a fine of Rs. 5000/- or in default of payment of fine further R. I. for 6 months 2, Both the convicts have challenged their convictions and sentences through the present appeal, 3. In support of its case the prosecution produced 10 witnesses. Hafiz Taj Din (P. W. 1) claims to have performed the nikah of Muhammad Iqbal P. . with Mst. Shamim Akfatar accused, on 11-4-1980. According to him Allah Bakhsh and Muhammad Yousaf were -the Vakeels for the bridegroom uhammad Iqbal while Bashir Ahmad aad another person were the vakeels of the bride. All Muhammad, an uncle of Mst. Shamim Akhtar was also present who had granted permission for the nikah which was performed after the offer and acceptance by Muhammad Iqbal and Mst. Shamim Akhfar. The bride, the bridegroom the witness and their vakeels had signed the nikahnama Ex. PA, which also bore the signatures of this witness. In cross-examination it is admitted by this witness that Mst. Shamim Akhtar was not personally known to him. He denied the suggestion ihat he had not accompaaied the witnesses when Mst. Shamtru Akhtar had accepted the offer of marriage. He has also admitted that he was not maintaining any record with regard to the marriages performed by him and he did not remember all the particulars of the parties to the marriage of which nikah was performed by him. The nikah ceremony had taken place in the house of Sher Muhammad but he did not know if said Shet Muhammad was related to any of the parties to marriage. It is denied by him that the nikah of Mst, Shamim Akhtar and Muhammad Iqbal was performed by him on 27-4-1980. It is further denied by him that on 1,1-4-1980, it had come to his notice that Mst. Shamim Akhtar was already married to Muhammad Yaqoob accused. He however did not know that prior to the aforementioned nikah dated II-4-1980, Mst. Shamim Akhtar was brought from the house of Muhammad Yaqoob accused. He had admitted that he had appeared as a witness in a suit filed by Mst. Shamim Akhtar accused against Muhammad Iqbal P.W. disowning her marriage with him and that suit filed by Mvt. Shamim accused was decreed by the court. 4. Muhammad Siddique (P. W. 2) is the Nikah Registrar of Ward No. 1684, Union Committee No. 9. After seeing original register in the court he stated that Nikahnama Ex, PA was in his hand. The nikah was performed jbetween Muhammad Iqbal P. W. and Mst, Shamim Akhtar accused by Hafiz Taj Din. Iqbal P.W. and Mst. Shamim accused had signed the nikahnama Ex. PA and the same was registered by him and the nikahnama was signed by him. In cross-examination he admitted that Mst. Shamim Akhtar and Muhammad Iqbai were previously known to him. He has further admitted that Mst Shamim Akhtar accused had filed a suit against Muhammad Iqbal P.W. pertaining to the nikahnama Ex. PA and he had appeared as a witness in that case. He, however, did not know that the said suit was decreed. According to him he had not stated before the court in the said suit that neither the plaintiff of the said case nor the defendant were personally known to him. At this stage the learned counsel for the accused informed the trial court that he was in possession of the certified copy of such a statement and that the original file might be summoned to enable the counsel to confront the witness with his previous statement. After ibis request of the learned defence counsel the trial court passed the following orders : "Order : I have seen the certified copy of the statement of Muhammad Siddique available to the learned counsel. Let the file of the suit for jactitation of marriage suit No, 140-S.C/1981, decided by Sh, Muhammad Yousaf, Judge Family Court, Faisala-bad, on 5-12-1982, be summoned for tomorrow. Sd. /- Addl : Sessions Judge, Faisalabad 3-9-1983." Accordingly, the said file from the Judge Family Court was summoned and made available to the trial court and this witness was confronted with that statement. It is admitted by this, witness that he had stated before the Civil Court that neither the plaintff nor the defendant in the suit titled Mst. Sbamim Begum v. Muhammad Iqbal were known to him personally. It is denied by him that at the time of nikah Mst. Shamim Akhtar was not present. According to this witness the nikah was performed in his presence and it was registered by him at the same time. Volunteered that the nikah was filled by him and when the bride Mst. Shamim had given her consent and signed the nikahnama he was present. Thereafter when he registered the nikah Mst. Shamim Akhtar was not infront of him but was present in the house. He has admitted that he had stated in his statement before the civil court that at the time of registration of nikah, Mst, Shamim Akhtar had signed the nikahnama in his presence. He has further admitted that he had stated in his statement before civil court that consent of the plaintiff (Mst. Shamim Akhtar) was obtained by Yousaf and Inayat. He demeo the defence suggestion that in the first instance the nikah of Muhammad Iqbal and Mst. Shamim Akhtar was entered at page No. 25 of the Register of nikahnama, H? has also deniecj that he had stated in his statement Ex, DA that the entry of nikah at page 25 was cancelled by him, He was duly confronted with Ex. DA wherein it was so recorded. He further denied that he had stated in his statement Ex DA that he did not remember if the entries of page No, 25 were cancelled by him. Again he was duly confronted with Ex. DA wherein it was so recorded. He has denied the suggestion that the nikah of Mst. Shamim Akhtar and Muhammad Iqbal was performed and registered on 27-4-1980 and that in order to change the date of nikah from 27-4-1980 to 11-4-1980 page 25 of the Nikah Register was removed by him and fictitious entry was made at page 26 with regard to the nikah between Mst. Shamim Akhtar and Muhammad Iqbal. He has also denied the suggestion that the contents of nikahnama Ex. PA were forgedly prepared and that no nikah had validly been performed between Mst Shamim Akhtar and Muhammad Iqbai. 5. Lady Dr. Mrs. Nafees Akhtar (P.W. 8) on 30-4-1980 at about 6.00 P M. had medically examined Mst. Shamim Akhtar accused aged 20 ears and made the following observations : "Hymen was broken with old and healed tears. No mark of injury or contusion was present on her body or private parts. She was habitual to sexual intercourse. Vagina admitted two fingers. Two vaginal swabs were taken and sent to the chemical examiner, Lahore for determination of presence of semen." Dr. Muhammad Ajmal Mian (P. W. 4) on 18-5-1980 medically examined Muhammad Yaqoob accused and found him fit for sexual intercourse. E. C. Javid Akhtar (P. W. 5) on 3-5-1980 on the receipt of complaint Hx. PD, recorded the formal F.I.R. Ex. PD/1 signed by him. 6. Khan Muhammad (P. W. 6) is the witness of nikah of Mst Shamim Akhtar accused with Muhammad Iqbal P.W. According to him on 11-4-1980 he was present when the nikah of Mst. Shamim Akhtar was performed with Muhammad Iqbal. The nikah was performed with the consent of Muhammad Iqbal and Mst. Shamim and the nikah was performed by Hafiz Taj Din (P. W, 1) and the same was registered and the entries were made in the nikahnama Ex. PA by Muhammad Siddiq P W. In cross-examination this witness has stated that the nikah was performed. in the house of her Muhammad who is related to Mst. Sharaim Akhtar accused. The wife of Sher Muhammad was the niece of the father of Mst. Shamim Akhtar. Before the nikah with Iqbal P. W, Mst. Shamim Akhtar accused used to live in the house of her uncle Ali Muhammad and she had come to the house of Sher Muhammad 3/4 days before the nikah, He denied the suggestion that before the nikah of Mst. Shamim Akhtar accused and Muhammad Iqbal P.W, she had already gone to the house of Muhammad Yaqoob accused and that she was brought from the house of said accused at the time of nikah Ex. PA. This witness has admitted that Mst Shamim accused is the daughter of his real maternal uncle. He denied the defence suggestion that the nikah of Mst Shamim Akhtar had taken place on 27-4-1980 and that he was present at the time of nikah. He however admitted that Mst. Shamim Akhtar accused had filed a suit against Muhammad Iqbal P W. First he stated that he did not remember if he had appeared as a witness in that suit but again said that he had appeared as a D.W. in the said suit. It is further admitted by him that he had stated in his statement before the court that before her marrige, the plaintiff (Mst. Shamim Akhtar) used to live in the house of her father withher step-mother. Volunteered that at times she used to live in the house of her father and at times in the house of her uncle Ali Muhammad. He had denied the suggestion that Mst. Shamim Akhtar accused haa contracted a marriage wish Muhammad Yaqoob accused and thereafter Muhammad Yousaf, Allah Bakhsh, and Inayat had brought her from the house of Muhammad Yaqoob accused forcibly and prepared a fictitious nikahnama of Mst. Sharnim Akhtar with Muhammad Iqbal and that at that time Mst. Shamim Akhtar accused was Jocked in a room. Bashir Ahmad (P. W. 7} has aiso made a similar statement as that of Khan Muhammad (P. W. 6). 7 Ali Muhammad (P. W, 8) is the complainant and paternal uncle of Mst. Shamim Akhtar being real daughter of his brother Ata Muhammad who had died before the present occurrence. The widow of said brother had also died some ten years before the present occurrence. His brother Ata Muhammad had no male issue but had only three daughters including Mst. Shamim Akhtar, After the death of their father ail the three daughters of his brother used to live with this ( witness. He was carrying on a joint business of power looms with Ivluhammad Yaqoob accused. According to this witness on 1S-4-1980 be had married Mst. Shamim Akhtar accused with Mahammad Fqbal P W. and the nikah was performed by Haflz Taj Din and was registered by Muhammad Siddique P. W, This witness was presect at the time of nikah and had signed the nikhanama Ex. PA. The nikah was performed with her free consent. On 23-4-1980 Mst. Shamim Akhtar accused had come to his house from the house of her husband Muhammad Iqba! P, W. On the said date she had gone to the house of Muhammad Yaqoob accused because the daughter of Yaqoob accused was a fellow student of Mst. Sharnim Akhtar previously. Mst. Shamim Akhtar accused failed to return to his house till night. The witness sent Ahmad Din to the house of Yaqoob accused to bring back Mst. Shamim Akhtar accused but Yaqoob accused did not allow her to return to his house. After that the witness accompanied by Allah Bakhsh, Boota, Ghulam Rasul, Ibrahim and Ahmad Din went to the house of Yaqoob accused as a panchayat, Muhammad Yaqoob accused met them there and after a short discussion, he stated that Mst Shamim accused was with him and that he would return her the following morning. On the following day again the witness himself, Ahmad Din and Anwar went to the house of Yaqoob accused and he allowed Mst. Shamim Akhtar accused to accompany them After returning to his house, he asked Mst. Shamim Akhtar as to why she had gone to the house of Yaqoob accused, Mst Shamim accused stated that she was in love with \aqoob accused and that she would not live in the house of her husband Iqbal P. W. After that, the witness lodged the complaint Ex. PD with the police signed by him. It is further stated by this witness that Mst. Shamira Akhtar and Yaqoob accused ware living as husband and wife. He did not know if Iqbal P. W. had divorcsd Mst. Shannon Akhtar or not. In cross-examination, the witness has admitted that Mst. Shimirn accused filed a suit against Muhammad Iqbal and he had appeared as a witness in that case. It is further admitted by him that he had stated in his statement that the daughter of Yaqoob accused had taken the plaintiff of said case on the pretext of marriage. It is also admitted by this witness that a case was registered against Muhammad Yousaf and others on the complaint of Muhammad Yaqub accused on 30-4-1980. He did not know if Mst. Shamim Akhtar was arrested by the police before the complaint Ex. PD was lodged by him. He further did not know if Mst. Shamim was sent to Darul Amman by the Magistrate. He denied the defence suggestion that the nikahnama of Mst. Shamim Akhtar and Muhammad Iqbal was not produced by him during the investigation of the case registered on the complaint of Yaqoob accused. He did not know if Mst. Shamim accused was arrested from the house of Muhammad Iqbal P. W. He denied the defence suggestion that on 24-4-1980 Mst, Shamim accused had informed him that she had contracted marriage with Yaqoob accused. He however admitted that his brother Ata Muhammad was owner of power looms in three Khattas and each one of his daughter received one khatta He denied the suggestion that the said power looms and khattas were in possession of himself and Ahmad Din. Volunteered that the said power looms and khattas were in possession of the step-mother of Mst. Shamim Akhtar accused. He denied the suggestion that he was in posses>ion of the land belonging to his brother Ata Muhammad and that in order to retain his illegal possession of land left by his brother Ata Muhammad, he wanted to marry Mst. Shamim Akhtar with a person who could not claim the possession of land from him. It is also denied by this witness that on 27-4-1980 Nikahnama Ex. PA was fictitiously prepared and that Mst, Shamim Akhtar had told him that she bad contracted marriage with Muhammud Yaqoob accused. It is also denied by him that only to save the accused in the case registered on the complaint of Yaqoob accused, the had lodged a false complaint Ex. PD with the police. According to him Mst. Nasim Akhtar the sister of Mst. Shamim accused was married on 27-4-1980. The witness did not know if Mst. Shamim had given birth to any child as a result of sexual relation between her and Muhammad Yaqoob accused. 8. Muhammad Iqbal (P. W. 9) claims to be husband of Mst. Shamim Akhtar accused. According to him his nikah was performed with her on 11-4 1980 in the house of Sher Muhammad P. W. and the permission for nikah was given by Ali Muhammad P W who is the paternal uncle of Mst. Shamim Akhtar accused. The parents of Mst. Shamim accused had died long ago. According to this witness he had signed the nikahnama Ex. PA and it was also signed by Mst. Shamim Akhtar accused. The ntkah was performed by Hafiz Taj Din P W. There were about 50/60 persons present at the time of nikah. It is further stated by this witness that after marriage Mst. Shamim accused had been performing the marital relations with him till 22-4-1980. On 22nd or 23rd of April, 1980, Mst. Shamim accused had gone to the house of Ali Muhammad P. W. for a normal visit. From the house of Ali Muhammad Mst. Shamim Akhtar accused had gone to the house of Muhammad Yaqoob accused and failed to return. Muhammad Yaqoob accused was detaining her for the purpose ot illicit relations and both the accused were committing zina with each other. He produced the nikahnama Ex. PA before the police during the investigation of this case. In cross-examination it is admitted by this witness that Mst. Shamim Akhtar accused had filed a suit against him with regard to the nikahnama Ex. PA. Volunteered that it was a false suit. It is further admitted by this witness that the said suit was decreed in favour of Mst. Shamim Akhtar accused and he had not filed any appeal against said decree. It is further stated by him that he had not filed a suit for restitution of conjugal rights. His statement was recorded in the above said suit. He has denied the defence suggestion that he himself, Yousaf, Inayat and Allah Bakhsh had forcibly brought Mst. Shamim Akhtar from the house of Muhammad Yaqoob accused in his absence. After returning from the house of Muhammad Yaqoob accused, she had lived in his house for 3/4 days. Mst. Snamim Akhtar accused was not arrested from his bouse. Volunteered that he had produced her at the police station. He has admitted that in his statement before the civil court, fae had stated that the plaintiff i.e. Mst. Sbamim Akhtar accused was arrested from his house. He has how ever admitted that Mst. Sharaim Akhtar accused was arrested in the case which was registered against him and others on the complaint of Muhammad Yaqoob accused. It is further admitted by him that Mst. Shamim Akhtar accused was seat to Dar-ul-Aman as ordered by the Magis trate. He denied the defence suggestion that nikahnama Ex. PA was fictitiously prepared after 24-4-1980 after which date he had been perform ing illegal sexual intercourse with Mst. Shamim Akhtar accused. Volun teered that he had been performing sexual relations with her after 24-4-1980 because she was his wife. He was duly confronted with his police statement: Ex, DD where certain things were not mentioned which he bad deposed before the trial court. It is admitted by him that Mst. Shamim Akhtar accused had not signed the nikahnama Ex, PA in his presence. He however denied the suggestion that in the first instance his nikah with her was entered in the Register on 27-4-198u and that the said page of the nikah register was removed and destroyed. According to him the nikahnama Ex. PA was completed in his presence and Mst. Shamim Akhtar had signed earlier than he had signed the same. 9. S. 1. Abdul Majid (P. W. 10) is the investigating officer in this case, He had recorded the complaint Ex, PD of Ali Muhammad P W. He forwarded the aid complaint to the police station for registration of the case. He proceeded to the place of occurrence and prepared the site plan Ex. PF. He recorded the tatements of P Ws He secured the nikahnama Ex, PA vide memo. Ex. PE signed by him. He also secured original register of nikahs vide ecovery memo. Ex PG. He also secured another nikah register Ex. PH. He got Mst. Shamim accused medically examined at D. H. Q. Hospital, aisalabad. She was formaHy arrested in this case on 3-5-1980. Muhammad Yaqoob accused was arrested by him on 18-5-1980 and aiso got him edically examined. After the completion ofthe investigation, he cballaned both the accused. In cross-examination this police officer has admitted that uhammad Iqbal P W had produced the nikahnama Ex. PA on 3-5-1980, It is further admitted by him that Yaqoob accused had got a case registered ith egard to the abduction of his co-accused Mst. Shamim Akhtar against Muhammad Iqbal and others. Mst Shamim Akhtar accused was recovered uring the investigation of the said case on 30-4-1980. She was produced before the court from whereshe was sent to Darul Aman. This witness did ot emember if Mst. Shamim Akhtar accused was produced before the court on 2-5-1980. According to him she remained in his custody on the night etween 30-4-1980 and 1-5-1980 and was produced before the Magistrate on 1-5-1980 and the court ordered for her production on 2-5-984, It is admitted by him that from 30-4-1980 to 2-5-1980 Mst. Shamim Akhtar remained in his custody. According to him he had recorded the statement of Mst. Shamim Akhlar accused in the other case on 30-4-1980. It is admitted by him that Mst. Shamim Akhtar accused had been con-. tinuously making the statement in favour of Muhammad Yaqoob accused It is denied by him that the court had not directed that Mst. Shamim Akhts r accused be produced on 2-5-1980. At that stage the witness stated that Muhammad Iqba! P W had not produced Msi. Sharaim Akhtar accusedand in fact she was recovered from the Baithack of Allah Bakhsb. At the time of recovery said Allah Bakfash was not present. He denied the efence suggestion that he had colluded with Muhammad Iqbal P W and others the accused named in the case registered at the instance of Muhammad Yaqoob accused and for that reason he had net arrested any one of them. It is farther denied by him that with that purpose, the case registered on the statement of Muhammad Yaqoob accused was cancelled and Muhammad Yaqoob and Mst. Sharrnm accused were falsely cftalUned at the instance of Muhammad Iqbai P W and others. Volunteered that the case registered on the statement of Muhammad Yaqoob accused was found false daring the investigation. He did not remember if there was any new sheet in the Nikah. Register secured during the investigation, tie denied the suggestion that the copy of nikahnama Ex P4 did not tally with the contests of Nikah Register, He admitted that Muhammad Boota Sub- Inspector is brother of Muhammad Yaqoob accused but denied the suggestion that in the year 197."> he was posted in C. I. A- Sargodha under said Muhammad Boota S. I, it is further denied thai the said Muhammad Boota 8. I. had reported to the higher officers against him for corruption. 10. Muhammad Yaqoob accused in his statement recorded under Section 342 Cr P. C. denied the prosecution allegations. According to him Mst. Shamim Akhfar accused was never married with Muhammad Iqbai P, W, When asked why this case was made against him arid why the P Ws had deposed against him. he stated as under : "I bad contracted marriage wish Mst. Shamim Begum, my co-accused on 20-4-1980. Thereafter myself and Mst. Shamim Begum have been performing marital relations. Since the uncle and other relatives, of Mst. Shamim Begum did not agree to my marriage with her. therefore, the uncle of Mst. Shamim Begum had lodged a false case against myself and the co-accused. The fact of matter was that on 23-4'1980 Muhammad Yousaf. Inayat, Allah Bakhsh and Muhammad Iqbal had abducted ray wife Mst. Shamsm Begum from my house in my absence. On 30-4-1980, a case was registered against the above said persons at my instance at P. S Cjulberg, Fai&alabad. However, the police had cancelled the said case in collusion with the said accused. The present case was registered only to create a defence for the accused . of said case. After the cancellation of case, 1 had lodged a complaint against the said accused who are b~ing tried in this court and the case is fixed for today."' 11. Mst. Shamim Akhtar accused in her statement recorded under Sec tion 342, Cr. P.C. also denied the prosecution allegations. According to her she had over contracted marriage .it any tune with Muhmmad Iqbal P.W. and nikahnama dated 11-4-19&0 E\h. PA. was a forged document. Accord ing to her she had filed a suit for jactitation of marriage against Muhammad IqbaS P. W. which was decreed in her favour. She denied the prosecution allegations thai from 11-4-1980 to 22-4 1980 she had been per forming marital relations with Muhammad Iqbal P. W. She stated that from 23-4-1980 to 30-4-1980 she was kept in illegal detention by Muhammad Iqbal P, W, und he had been committing zina-bil-jabar with her throughout this period. On 30-4-1980 she was recovered by the police during the investigation of the case registered at the instan:e of Muhammad Yaqoob accused. According to her she remained in the custody of police since 30-4-1980 and was formally arrested on 3-5-1980. When asked why Ihis case was made against her and why the P Ws. had deposed against her, she stated that her co-accused Muhammad Yaqoob had made a detailed statement in this behalf and she owned the same. 12. The accused persons produced 3 witnesses in defence. Ailah BakhshfD W !) is Imam of the Mosque in Ghuiara Muhammad Abad and he had performed the nikah of Muhammad Yaqoob and Mst, Shamim ^ Begum accused in the house of Muhammad Vaqoob accused. He is a nikah khawn aiso. The register of" nikah was brought by Sher Muhammad. He stated that the original nikahnama was Exh. PB in the cross-case, Exh. PB was the photostat copy of said nikahntima. The original bore his signatures correctly f-k has deposed that luhimself and Abdul Aziz had obtained the consent of Mst Shurnim Begum accused and two perts of nikah were duly filled by Sher Muhammad and two perts blank of signa tures of both the accused were present on blank perls of nikahnama. He had also signed the two blank pern of niknfwama. In cross-examination the witness stated that he had asked .\fst Shamim Begum if she wa,s previously married w : th any other person 10 which she replied in negative. However, prior to that, he did not know if Mst Shamim was married with Muhammad Iqbal P. W. 13. Sher Muhammad (D. W 2) is the nikah Registrar. He has depos ed that on 20-4-1980 he had registered the nikahnamu of Muhammad Yaqoob and Mist. Shamim Begum accused. He had seen the original nikahnama on the file of cross-case., photostat copy was Exh. DB the oripnaf nikahnama was signed by him. and he was present at the time of nikah also. In cross-examination if is stated by this witness that four perts of nikah are to be prepared but he had not signed all the pens and had signed only one pert of nikah He, however, admitted that two peris f nikah were filled and the other two were signed by the parties and the nikah khawn It is further admitted by him that Mst hamim Begum accused had signed the nikahnama as Mst, Shamim Akhtar and then she signed the nikahnama as Mst. Shamim Begum ecause her name was entered as Mst. Shamim Begum int column No. 4 of the nikahnama. He V denied the prosecution allegation that 20-4- '< 980 was fictitiously entered as th? date of registration of the pert nikah. He, however, has admitted that the date of registration does not exist on the other three perts of nikah register. He also denied the suggestion thai the nikahnama was fictitiously prenared on the night between 23/24th April 1980 and incorrect date of 20-4-1980 was recorded, 14. Abdul Aziz (D. W, 3} claims to he present at the nikah of Muhammad Yaqoob and Mst. Shamim Begum accused. The ikah was performed on 20-4-1980 by Allah Bakhsh D. W. Mst. Shamim was known
to him and he alongwith Ham Din and Allah Bakhsh D W. had obtained the consent and signatures of Mst. Shamim Begum accused on the nikah nama. He stated that Ham Din was his real brother, In cross-examination by the state counsel he has stated that he had thumb marked nikahnama, He had thumb marked two perts of nikah which were duly filled Accord ing to him he had not put his thumb impression on any blank forms. According to him Mst Shamim Bdgum was brought o the house of Muhammad Yaqoob accused by Sultan before the nikah, in his presence _ Prior to her nikah Mst Shamim had never visited the house of Muhammad Yaqoob accused, Similarly, Muhammad Yaqoob accused had also never visited the house of Mst. Sham-m Beeum before the nikah. The date for nikah was Sued some three or four dav; before the nikah. and i? wa;; fiied by Ch. Sultan, He denied the suggestion that Ch. Sultan was neither the uncle nor otherwise related to Mst. Shamim Begum and that the nikahnama was fictitiously prepared on the night between ^3rd, 24th April, 1980 and the date was incorrectly put as 20-4-1980, He further denied the suggestion that he bad made a false statement at the instance of Muhammad Yaqoob accused, 13. The trial court vide impugned judgment convicted and sentenced Muhammad Yaqoob and msi. Shamim Begum accused as mentioned above, 16. We have heard at length the counsel for the parties who have also taken us through the entire material available on the record. 17. Certain dates are rather significant in this case. According to the compianar.t the nikah of Muhammad Iqbal P.W. with Mst. Shamim accus ed was performed on 11-4-1980- According to the accused persons the nikah f Mst, Sharnim accused with Muhammad Yaqoob accused was performed on 20-4-1980. It was on 23-4-1980 when first she went to see her uncle Ali Muhammad and thereafter went to see Muhammad Yaqoob accused. On 24-4-1980, the complainant party brought her back from the accused party. On 26-4-1980 an application under Section 100 Cr. P. C. for the recovery of Mst. Shamim accused was submitted by the accused party bat no action as taken. It was on 30-4-1980 that Muhammad Yaqoob accused lodged the report with the police against Muhammad Iqbal P. W, and others. According to the version of the accused it was under these proceedings that on the same date i.e. 30-4-1980 Mst. Shamim was recovered by the police. According to the investigating officer she was recovered from the baithack of Allah akhsh On the other hand Muhammad Iqbai P. W says that he produced her before the Police on 30-4-1980 On 2-5-1980 she was sent to Darn! Aman, Ali uhammad tiled a complaint against the accused oa 3-5-1980. Thus at the relevant time there were two complaints in the field one filed by Ali uhammad , W. and the other Muhammad Yaqoob accused. The police cancelled the complaint of Muhammad Yaqoob accused on 15-5-1980. After the cancellation f his complaint, Muhammad Yaqoob accused on 26-1-1981 filed a private complaint before the trial court which proceeded alongwith the challan case and the trial ourt summoned four accused persons in that private complaifit on 18-2-1981. Mst. Shamim Akhtar on 25-1-1983 filed a suit for jactitation before the udge Family Court Faisalabad against Muhammad Iqbal P. W, This suit was hotly con tested by the parties and ultimately on 5-12-1982 the suit was decreed in favour of Mst. Sharnim accused It was long after this that on 22-1-1984 the trial court convicted and sentenced the accused in the police challan case ut dismissed the private complaint of Muhammad Yaqoob accused. Both the convicts Muhammad Yaqoob and Mst. Shamim have challenged their convictions nd sentences through Cr. A. No. 15/L of 1984 while Muhammad Yaqoob accused has filed Cr. P. S. L. A. No. 1/L of 1984 for special leave to appeal gainst Muhammad Yousaf and others. Since the criminal appeal as well as the criminal petition for special leave to appeal arise out of the same set of facts nd circumstances they shall be disposed of together by this judgment. 18. It is vehemently contended by Mr. Aftab Farrukh the learned counsel for the convicts that under Section 5 of the Family Court Act, 1964, in matrimonial matters including jactitation, Family Court has exclusive jurisdiction and final adjudication in that jurisdiction is a judg ment in fern under Section, 4.1 of the Evidence Act, and, consequently, a "conclusive proof" of the matter io question or fact decided. It is further argued by him that when a matter decided is conclusive proof as defined under Section 4 of the Evidence Act, it means that no evidence will be per mitted to be led for disproving or challenging the fact so found. It is also stated at the bar by the learned defence counsel that the trial court itself had summoned the original file from the Judge Family Court regarding the jactitation suit filed by Mat. Shamim accused against Muhammad Iqba! P. W. and the said file contained the original judgment and decree of that court and, therefore, it was obligatory on the part of the learned Addition al Sessions Judge to take notice of the said judgment and decree of the Judge. Family Court and to give effect to the same in accordance with law. In other words, the trial judge could not ignore or wash off the effect of the judgment and decree of the judge Family Court on a technical ground that a certified copy of "the same was not placed on the record. The interim order of the trial court dated 3-9-1983 summoning the file of the suit for jactitation of marriage decided by the Judge Family Court has already been reproduced above. It is an admitted fact that the judgment and decree of that Court dated 5-12-1982 had attained finality as the same were not challenged before any competent court or forum by the aggrieved party. The result is that the said judgment and decree still hold the field and have attained finality. It is in this factual background that we have to see whether the effect of the said judgment and decree can be washed off indirectly on technical ground that certified copies were not placed on the record although the original file containing the required judgment and decree was available to the trial court. The learned defence counsel has placed reliance on certain portions of the judgment of the Shariat Appel late Bench of the Supreme Court in Muhammad Azam's case reported in PLJ 1984 S. C. 192. Factually, the position boils down to this that both Muhammad Iqbal P. W. and Muhammad Yaqoob accused claim their respective marriages with Mst. Shamim accused. As regards the position of Ms!. Shamim accused, she has admitted her marriage with Muhammad Yaqoob accused and has denied her marriage with Muhammad Iqbal P.W. In addition to the stand taken up by Mst. Shamim Akhtar before the trial court, there is another very important circumstance which is decisive re garding this particular issue. As mentioned earlier, she on 25-S-1981 filed a suit for jactitation before the Judge Family Court, Faisalabad against Muhammad Iqbal P. W. who contested the suit. The Judge Family Court framed the following issues in that suit ; "(1) Whether plaintiff is legal wedded wife of Muhammad Yaqoob and has no relation with the defendant ? OPP. (2) Whether plaintiff has no cause of action to file this suit ? OPD. (3) Whether plaintiff has no locus standie to file this suit ? OPD. (4) Whether suit is not maintainable in its present form ? OPD." Issues No, 1, 2, 3 and 4 were decided against the defendant Muhammad Iqbal P. W. and consequently the suit, of Mst. Shamim accused plaintiff was decreed in her favour against the defendant Muhammad Iqbal P. W. It is an admitted fact that the judgment and decree of the Judge Family Court, Faisalabad were not challenged before any appropriate court or forum and, therefore, that judgment and decree have attained finality and still hold the field. Now we have to see the effect of that judgment and decree on the present criminal ease. In other words the question is whether the judgment and decree of the Judge Family Court are binding upon the criminal courts including the Federal Shariat Court regarding the marriage of Mst. Sharaim accused with Muhammad Iqbal P, W. The learned defence counsel, as mentioned above has relied upon the decision of the Shariat Appellate Bench of the Supreme Court in Muhammad Azao's case referred to above. The Shariat Appellate Bends in that case tV-rrmilated various questions, Question No, S at this stage is relevant and '- reproduc ed below : "When a superior Court or for that matter (finally) the Supreme Court decides the issue of nikah in a criminal case of iin,.i,. will the Family Court be able to decide it agam ; and whether princi ple of general res judicata applied in recent cases on Rent Res triction law and Settlement writ cases vis-a-vis the civil Courts, will sot be attracted." This question has been answered that the principle of res-judicasa. subject to certaio observations would be attracted, 19, Question No. 2 formulated by the Shariat Appellate Bench reads as under : "Whether the judgment of one or the other forum will be relevant uactar the Evidence Act. If so which forum will have precedence at trial level." While dealing with this question, their lord-ships were pleased to observe 8$ uader t <J lae second question relates to the stage and level of the relevant proceedings as different from the one assumed in the first question. Strictly speaking the judgment of the tna! judge under she criminal law will not have any determinative effect or the decision before the Family Court if it is to be on the same issue and bet ween the same parties except to the extent it is permissible to refer to it under the law as declared by this Court in the case of Malik Din and smother. However it cannot be said regarding vice versa situation and thus the judgment by the Family Trial Judge would have direct effect on the outcome in the criminal trial if the question of vahd nikah, which already stands decided by ihe Family Court, is a!so involved before the criminal Court, Therefore, the decision of the Family Court in this behalf will have precedence," 20. It is not disputed that the principle enunciated by the Shariat Appellate Bench of the Supreme Court is constitutionally binding upon this Court. n the circumstances of the case, no exception at chis stage in the present criminal proceedings, can be taken against the judgment and decree of Judge Family Court which have attained finality and still hold the field and therefore, principle of res-judi:ata would he attracted. The trial court was not legally comoeient to nullify the effect of judgment and decree of the Judge Family Court. It may be observed that under Section S of the Wsst Pakistan Family Courts Act 1964, Judge Family Court had 'exclusive jurisdiction to adjudicate upon all matters specified in the At p. 214, bedu.,e, Thf schedule clearly includes jactitation of marriage also. The id S';a;on 5 and the schedule are reproduced below : -' A. J, Jurisdiction.Subject to provision of the Muslim Family Lows Ordinance, !96i and the Conciliation Courts Ordinance, 1961 the Family Courts shall have exclusive jurisdiction to entertain, hear and odjudicate upon matters specified in the Schedule." "SCHEDULE See Section 5 at page (supra) ' i i Dissolution of marriage. <,T! Dower, i'35 Maintenance. Restitution of Conjugal rights, Custody of children. (6) Guardianship, (?) Jactitation of marriage, Further we find that Section. 41 of the Evidence Act will also be attracted in this behalf and the judgment and decree of the Judge Family Court regarding jactitation of marriage of Mst. Shamina accused will be a judg-j mem in rem and conclusive proof of the matter in question as defined irj Section 4 of the Evidence Act. Section 41 of the Evidence Act reads a>J under : "S. 41. Relevancy of certain Jadgraeafs in probate, etc, jurisdiction. A final judgment order or uecree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency juris diction, which confers upon or takes away fromany Segal charac ter, or which declares any person to be entitled to any specific ibing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the !:Ue of any such person to any such things, is relevant. Such judgment, order or decree is conclusive proof ; that any legal character which it confers accrued at the lime when such judgment, order or decree came into operation : that aay legal character, to which it declares any such person to be entitled, accrued taat person at the time when such judgment, order or decree declares it to have accrued to tout person ; chat any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree, declares that it had ceased or should cease ; and that any thing to which it declares any person to be §o entitled was the property of that person at the time from which such judgment, order or decree declares that it had beeo or should he his property." The expression "conclusive proof" has been defined under Section 4 of the Evidence Act ia the following words : 4. Conctasive Proof.-"When one fact in declared by toil Act to be conclusive proof of another, the Court shall, on proof of the o0e fact, regard the other as proved, and shail not allo to be given for the purpose of disproving it," It is not disputed that suit for jactitation is a matrimonial matter, there fore, included under said Section 41 of the Evidence Act, As mentioned above, Judge Family Court had exclusive jurisdiction to adjudicate upon the suit for jactitation under Section 5 of the Family Courts Act, !964 and, therefore, the judgment of the Judge Family Court would be a judgment, in rem and would have binding effect upon the criminal courts. The obvi ous result of judgment and decree of the Judge Family Court dated 5-12-1982 is that Muhammad Iqbai P. W. cannot claim Mst. Sharasm ccused as his wife and his claim regarding his marriage with her on 1-4-1980 cannot be even entertained. The Shariat Appellate Bench of the Supreme Court in the above mentioned case while dealing with the judg ment of the judge Family Court observed as under :- "Hence it would have a binding effect in so far as the legal character referred in Section 4! of the Evidence Act is concerned, regarding matrimonial relationship-its affirmative and negative aspects included." In accordance wish the principle laid down by the Shariat Appellate Bench of the Supreme Court, it can safely be held that in the instant case the judgment and decree of the Judge Family Court dated 5-12-1982 in jactitation suit filed by Mst. Shanrm accused against Muhammad Iqbal P, W. having attained finality, will have precedent and conclusive proof so far the question of her marriage with Iqbal P. W. is concerned. The re sult is that Iqbal P. W. can neither claim Mst. Shamim as his wife nor his marriage with her on 11-4-1980. It is not denied even by the iearoed State Counsel and the counsel for the complainant that if the alleged nikah of iqbal with Mst. Shamim accused dated 11-4-1980 is disbelieved or becomes noa-existant, then the present convicts have committed no offence in marry ing each other on 20-4-1980 and committing sexual intercourse as husband and wife, as both are major and have admitted that status even before the trial court in their statements under Section 342, Cr. P. C, Mst. Shamim Akhtar accused may have contracted her nikah with male co-accused against the wishes of her relations but in the eye of Saw she was fully competent to enter into said nikah with Yaqoob accused as she was maior. 21. Following the principle enunciated by the Shariat Appellate Bench of the Supreme Court in Muhammad Azam's case referred to above, we accept this appeal set aside the convictions and sentences of Muhammad Yaqoob and Mst. Shamim Akhtar appellants and acquit them of the charge. They are already on bail. The bail bonds stand discharged. 22. As regards criminal petition for special leave to appeal No. 1/L of 1984, it is still at the preliminary stage and has not been yet admitted for regular hearing and no notice has been issued to the respondents. The learned counsel for Muhammad Yaqoob petitioner has not advanced any arguments whether to justify grant of leave to appeal as he has felt satis fied with the success in the main appeal. .Accordingly this petition for special leave to appeal fails and the same is hereby dismissed in limine. (TQM) Appeal accepted.
PLJ 1985 FSC 91 PLJ 1985 FSC 91 [Revisions! Jurisdiction] Present: gul mohammad khan, CJ & mufti sved shujaat An qadri, J MUHAMMAD NAZIR-Pefitioner versus Mst. KANIZ FATlMA-Respondent Criminal Revision No. 25/1 of 1984, decided on 17-2-1985. Offence of Ziaa (Enforcement of Hadood Ordinance, 1972 (VII of 1979}
S. 10 (2) read with Constitution of Pak ; stan, 1973-Art 2t3DD Zina Offence ofComplaint regardingDismissal ofChallenge to Trial court though having contentions matter to decide before it, complaint riled by petitioner under S. 10 (2) of Ordinance dismissed by Additional Sessions JudgeQuestion of consummation of marri age of parties going to root of case Ex pane decree for dissolution of marriagp obtained by respondent also set aside by Judge Family CourtHeld : Order ot dismissal of complaint by trial court being not justified in any way, same to be set aside in revision. [P. 92]A PLJ 1984 SC 192 rel. Mr. M. Bilal, Advocate for Petitioner. Mr. Fazal Blahi Siddiqui, Advocate for Respondeot. Date of hearing : 17-2-1985. judgment Gal Mohammad Khao, C, J.~~This is a Revision Petition challenging the validity of order passed by the learned Additonal Sessions Judge, Sargodha, by which he dismissed the complaint filed by the petitioner under Section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 2. The view taken by the learned Additional Sessions Judge was that (i) the criminal complaint could not have been filed directly before the Sessions Court as Section 190(3) Cr. P C requires that a complainant should first ot all do so in the court of the competent Magistrate, (ii) The case of the parties falls under Section 494 PPC and not under the Ordinance VII of 1979. 3. Both the learned counsel are not in a position to support the view taken by the learned Additional Sessions Judge and do not feel the necessity of arguments on that plan. It is, however, submitted by the learned counsel for the petitioner that as the complaint had been filed on the ground that second marriage had taken place during the period of 'iddat', the trial court ought to have taken the evidence of the parties to decide if the previous marriage had been consummated at all as stated by the respondents. It is argued that the case of the petitioner was that'respondent Mst. Kaniz Fatima has been living in his house as his wife before she went back to her parent's house but respondents denied it. 4. The learned counsel for the respondents pleads that the earlier marriage between the spouses had never been consummated and a suit for dissolution of marriage had been filed on 10-7-1978 in exercise of option of puberty. He. therefore, argues that the question of iddat did not arise in this case and the impugned order can be supported on that basis; 5. After hearing the learned counsel, we find that the trial court did have a contentious matter to decide before it. The position taken by the parties shows that the question whether marriage had been consummated or not went to the root of the case. The trial court also knew that the exparte decree had since been set aside and the suit for dissolutin of marriage between the parties had to be decided on merit by the Family Judge. In these circumstances, he should have considered the rule laid down by the Supreme Court in Muhammad Azam vs. Mohammad Iqbal (P. L. J. 1984 S.C. 192) and acted accordingly. As he has not done what he was required to do according to law and has passed an order which is not justified in any way. we set aside the same. 6. The result is that the complaint of the petitioner shall be considered as it it is still awaiting decision before the trial court. However, in order to save the parties from further unnecessary expense and worry we stay the proceedings in view of the rules laid down by the Supreme Court, in the case referred to above and direct that the proceedings shall be re-started on the move of one or the other party, after the suit of dissolution of marriage is disposed of by the learned Family Judge. 7. As the proceedings before the trial court have been stayed we will appreciate if the learned Family Judge takes up this matter day to day and disposes of the same without any unnecessary delay. 8. The copy of the order shall be sent to the trial court as well as the learned Family Judge. (MIQ) Order accordingly.
PLJ 1985 FSC 92 PLJ 1985 FSC 92 1 Revisional Jurisdiction] : muhammad siddique & maulana abdul quddus qasmi, ,IJ FERDINAND BUCHNER and 2 OthersPetitioners versus THl STATERespondent Criminal Revision Petition No, 111 of 1985, decided on 9-5-1985. (I) Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979) -Arts. 3 &. 4IntoxicantOwning or possessing ofOffence of Charas recovered from wooden box lying in bus on pomtation of one of appellants Heid : Each and every occupant or passanger of vehicle not to be held guilty for recovery of any intoxicant from such vehicle unless such occupant or passanger be proved to be actually owner of such intoxicant or possessed same or be party m keeping of such intoxicant in vehicleHeld further : Mere knowledge or infor mation in such situation not to be sufficient to connect such occupant with actual offence unless prosecution shows their interest in such intoxicants. [P, 98]^ (ii) Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-
Arts. 3 & 4IntoxicantExport or transport ofOffence of Char-as recovered from wooden box lying in bus in pointation of one of appellantsOwnership of such box, however, not ascertained by prosecutionHeld : Mere recovery of charas from box lying in vehicle in such situation not to make each and every occupant of vehicle responsible for same Held further : Prosecution to be required to fix liability upon some particular individual or individuals actually responsible for exporting or transporting such charas. [P. 98J B (iii) Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)
Arts. 3 & 4IntoxicantExport and transport ofOffence of Charas recovered from wooden box lying in bus on pointation of one of appellantsOwnership of such box not determined by prosecution Three other occupants of same bus treated and arrested as accused persons at time of raid subsequently got discharged by Investi gating OfficerProsecution bringing no material on record to connect two out of three appellants with charas in question or to distinguish their casefrom that of discharged personsHeld : Such appellants to legitimately claim benefit of doubt existing in prosecution version. I P. 98]C Messrs. S. M. Zafar & M, Bilal, Advocates for Petitioners. Mr, M. Asians Uns, Advocate for Respondent. Date of hearing : 15-4-1985. judgment Muhammad Siddique, J ;According to tb« prosecution the brief facts of the case are that on 22-5-1984 the Customs officials, Rawalpindi , received secret information that in foreign bus bearing No. CAT 558-X which at that time was standing outside hotel Holiday Inn, Islamabad , charas was going to be smuggled. Accordingly a raiding party headed by Ghuiam Mustafa, Deputy Superintendent (Customs) Anti Smuggling was arranged which reached Police Station, Rewat and reported to AS! Zulfiqar Hussain Shah, PW about their mission. The said police officer alongwith two constables of that police station also joined the raiding party and held a nakabandi (iS^-i 5"M) near Chak Beii Khan crossing on main G. T. Road. At about 7-30"p. m. the said foreign bus No. CAT. 558 X reached there from Rawalpindi side. The raiding party stopped the said bus. At that time in all six persons including the driver were present in the bus. The bus was at that time driven by Ferdinand Buchner. There was also a lady among the passengers of the bus. On search of the bus the raiding party recovered 12 packets of charas each weighing one kilogram from a wooden box lying in the backside of the bus. The charas was found lying underneath the clothes in the said box. Out of one packet 10 grams charas was separately taken as a sample and icaled into a separate parcel for analysis by the Chemical Examiner. The remaining charas was taken into possession vide recovery memo Ex. PA. Each of the six occupants of the bus was also individually searched and separate search memos were prepared about their search. The bus was also taken iato possession vide memo Ex. PB Initially all the six occupants of the bus were treated and arrested as accused persons. However, it is an admitted fact that subsequently during the investigation, three occupants were got discharged and allowed to go. However, finally the police chailaned the following three persons under Article 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as Oie Order) who were tried by the Magistrate, 1st Class, Rawalpindi : 1. Ferdinand Buchner. 2. Michael Anthony Sheldrick. 3. James Maitland Lang. 1. In support of its case the prosecution produced five witnesses. Ghulam Mustafa, Deputy Superintendent Customs (P W.I) has deposed that on secret information, he arranged a raiding party and reached near Rewat. The foreign bus No. CAT. 558. X reached there at about 7 30 p. m and the same was signalled to stop. The driver of the bus in compliance with the directions of the raiding party, stopped the bus. At that time in all there were six occupants in the bus including the driver and a lady. On search of the bus, a wooden box was found lying in the backside of the bus. On the search of that box, 12 packets of charas each weighing one kilogram were found lying underneath the clothes. Out of one packet, 10 grams charas was separately sealed in a parcel for chemical analysis. The remaining charas was also taken and sealed in a separate bag. Recovery m;rao Ex PA was prepared at the site. All the six accused persons were also individually searched and separate search memos were prepared. It is deposed by this witness that it was accused Michael Anthony at whose instance the said charas was recovered from the wooden box. In cross-examination, he has stated that he did not know that the bus of the accused persons was in Islamabad, accused Ferdinand B-ichner took tha bus for service while the remaining accused went for shopping and at that time two persons came and gave these packets of charas with the direction that they were to be taken upto Lahore and accused Ferdinand then put these packets in the wooden box. He further denied the suggestion that the accused had no knowledge that the said packets contained charas. To a court question, this witness has stated that the secret information was received on telephone at about 7.00 p.m. The informer had conveyed the information that the said bus was standing in Islamabad Holiday Inn Hotel, The Superintendent Customs then deputed one person to watch the said bus at the hotel and directed this witness to go ahead towards Rewat alongwith other members of the raiding party. The party reached Chak Beli Khan crossing at about 720 p m. After about five minutes the bus reached there and behind the bus was a Government pick-up of the Customs Department. The bus was stopped. He has admitted that on receiving the signal, the driver of the bus neither himself tried to run away nor tried to take the bus away but stopped it then and there. When the driver of the bus was asked whither he had any charas, he replied in the negative and stated that he had no knowledge but his companions might have. According to the witness, then accused Michael Anthony was asked the same question who first tried to put off the matter but ultimately admitted that charas was there and he could get the same recovered. Accordingly this accused took the members of the raiding party inside the Bus and got recovered 12 packets of charas each weighing one ' kilogram from a wooden box lying in the backside ot the bus. Out of one packet, 10 grams charas was taken as a sample for chemical analysis The witness has admitted that he did not include any public man from the locallity as he had very little time at his disposal. In further cross-examina tion, this witness admitted that one accused was a German national while two were British nationals and they had come to Pakistan as tourists. He, however, did not know when the accused had reached Pakistan. In his presence in all six accused were arrested and out of them three accused were not present in court on that day. He did not remember whether he had stated in his police statement that accused Michael Anthony got the charas recovered from the box. He was confronted with his pol.ce statement Ex. DA where it was not so recorded. He further admitted that in the recovery memo it was not mentioned that it was accused Michael Anthony who got the charas recovered. It was mentioned in the recovery m.mo that during the search of the wooden box, charas was recovered from underneath the clothes. No recovery memo, was prepared regarding other clothes. No recovery memo was prepared regarding other clothes etc Iving in the said box. In his presence the thanedar did not try to include any witness from the public. He denied the defence suggestion that he was not present on the spot. 3. Inspector (Customs) Ashiq Hussain Bukhari (P.W.2) has deposed that on 22-5-1984 he was included in the raiding party which reached Chak Beli Khan crossing near Rewat. The raiding party consisted of Customs and police officials. He has fully supported the prosecution version and has given similar version of the occurrence as given by Deputy Superintendent of Customs (P.W. 1) He was confronted with his police statement Et. DB where certain things were not mentioned which he bad deposed before the trial court. In cross-examination this wittiess has deposed that on the pointing of Michael Anthony the charas was recovered from the wooden box l>ing at the backside of the bus. 4. H.C. Manzoor Hussain (P.W. 3) was at the relevant time working as Muharrar in police station, Rewat. On receipt of complaint Ex. PC/1 trom from AS1 Zulfiqar Hussain, he prepared the F.I.R. Ex. PC. The said A- S.I. also gave certain sealed parcels to him for safe custody. He sent one sealed parcel to the office of the Chemical Examiner on 27-y-1984 through constable Abdul Ghafoor. In cross-examination he has stated that because )f shortage of staff there was delay in sending the parcel to the office of the Chemical Examiner. 5 A.S.I. Zulfiqar Hussain (P. W. 4) is the investigating officer. He was also a member of the raiding party headed by Ghulatr> Mustafa, Deputy Superintendent (Customs). He has also given a similar version of the occurrence as that of the other members of the raiding party. Accord ing to him, accused Ferdinand Buchner was driving the bus at the relevant time and in addition to the present accused there were five other occupants of the bus including one lady. According to him, it was on the pomtation of accused Michaie Anthony that 12 packets of charas were recovered from the wooden box lying in backside of the bus. Out of one packet he took out a sample of 10 grams and sealed it into a parcel for chemical analysis. The remaining packets were also put in a separate bag. He had attested the recovery memos. The bus was also taken into possession vide recovery memo Ex. PB attested by him. On the personal search of all the accused persons separate search memos were prepared signed by him. He prepared complaint Ex. PC/1 and sent to the police station where formal F I.R Ex PC was registered by Manzoor Hussain, H. C According to him, three co-accused who were also present in the bus at the relevant time, were found innocent during the investigation and he got them discharged accord ing to law. In cross-examination, he denied the defence suggestion that he challaned innocent persons. It is further stated by him that the accused persons were travelling in the bus for the last nine months and they were in possession of visa for Iran . According to him, due to shortage of time no member of the public was associated with the investigation. He has further stated that accused Michae! Anthony joined the party only one day earlier and two other passengers had joinei party one week earlier at Dehli, The accused had taken the bus on hire for one year for payment of two thousand pounds. In cross-examination, this witness has admitted that a petrol pump was situated near the police station and at a short distance was also a colony but he had not taken any person from ths public while going to raid the bus It is admitted by him that accused Michael Anthony had joined the bus one day earlier. According to him , initially all the six accused persons were on remand for three days. He got three accused persons discharged by Mr. Abdul Khaliq. Magistrare 1st Class. He did not keep those three persons as witnessess nor got their statements recorded under Section 164 Cr. P. C, He denied the suggestion that the packets, clothes and the charas recovered from that box belonged to those three co-accused whom he got discharged after obtaining bribe from them, and also handed over the said box and clothes to them. 6. Constable Abdul Ghafoor (P.W .5) is a formal witness who was entrusted a sealed parcel by Muharrar Manzoor Hussain, P.W. for sending the ame to the office of the Chemical Examiner, Lahore . Accordingly he went to the local Excise Office and after obtaining necessary docket, sent he sealed parcel to the office of the Chemical Examiner, Lahore through registered parcel. 7. In their statements recorded under Section 342 Cr. P.C. the accused persons denied the prosecutiqn allegations. Accused Ferdinand Buchner in his statement admitted that on 22-5-1984 at about 8-30 p. m. he alongwith Michael Anthony Sheldrick and James Maitland Lang was traveling in bus No. CAT. 558. X towards Lahore side but added that three more persons were also travelling in the said bus. When asked whether on 22-5-1984 at about 7-30 p.m. at Chak Beli Khan crossing at G. T. Road on the search of his bus 12 packets of charas were recovered from a ooden box each packet weighing one kilogram, he stated as under : capacity to impregnant a female Asadullah has not referred to this symptom. Moreover no semen found on the body or clothes of the victim child. The eye-witnesses had seen only bleeding from her vagina, as a result of which her shalwar and shirt had also got blood stained. The Chemical Report Ex. P/G also ^sbows that only blood stains were found on the shirt and shalwar of the child. Reference to Chemical Report can be made if it is in favour of the accused appellant, although no question was put to him by the trial court about it while recording statement under section 342 Cr. P. C. This section places embargo upon those pieces of evidence which are against an accused and not upon those which are in his favour and about which no question is put to him. 18. We are, therefore, inclined to hold that the appellant was aged about 11 years at the time of the incident according to his School Leaving Certificate and that he has not been proved to be adult by the medical evidence This being the case, the appellant was entitled to the benefit f section 7 of the said Ordinance, which provides that a person guilty of zina or zina-bil-jabar if he is not an adult, be punished with imprisonment of either description for a term which may extend to 5 years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding 30 sripes. In the case of Muhammad Hussain v. Mohammad Ramzan & another (PLD 1982 FSC l.)the accused aged 14 years was held to be not an adult; and sentence for offence of Zina under section 7 of the Ordinance was reduced only to fine of Rs. 8000/. In th present case the appellant has already suffered about 1 £ years Rigorous mprisonment from the date of his conviction. We, therefore feel that the period of imprisonment already undergone plus fine of Rs. 5000/- as awarded by the trial court shall adequate punishment for the offence proved against the appellant. 19. Consequently the appeal is partly allowed. The sentence of imprisonment is reduced to the period already undergone, but the sentence of ine amounting to Rs. 5000/- which is payable to the victim as compensation, is maintained. He shall be released as soon as the amount of fine is paid, if not equired in any other case. In default of payment of 5ne ha shall suffer simple imprisonment for six months. The sentence of whipping is also remitted. (TQM) Appeal partly allowed.
PLJ 1985 FSC 137 PLJ 1985 FSC 137 [Revisions! Jurisdiction] Present : mufti shumat ali Q adri & fakhruddin H. shaikh, JJ ABDUL HAMEED-Petitioner versus THE STATERespondent Criminal Revision No. 24/1 of 1985, decided on 16 6-1985. Prohibition (Enforcement of Hadd) Order, 1979 (P. O. 4 of 1979) Art. 4 Owning or possessing intoxicantOffence ofChemical ExaminerReport ofFailure to give reasonsEffect ofParcel received by Chemical Examiner found to contain charas No reasons for opinion regarding article being charas, however, given by Examiner Excise Inspector and Excise Constible recovering incriminating article from petitioner stating and certifying s^ame to be charas Held: Charas being most common commodity in country, no thorough chemical examination by or certificate from Chemical Examiner regarding its being charas to be required Chemical Examiner also not called for cross-examination by peti tioner under S. 510, Cr P C. Held : Any detect in report of Chemical Analyser not to render case doubtful. [Pp. 141 & 142]B &. C PLJ 1984 Cr. C. (Lah) 224 ; AIR 1933 AH 394 ; AIR 1944 Bom. 321 ; PLD 1971 Dae. 5 & PLJ 1981 Cr. C (Lah ) 137 distinguished. (ii) Prohibition l Enforcement of Hadd) Order, 197^ (P. O. 4 of 1979)- Art. 4 Owning or possessing int
xicant Offence of No enmity with petitioner alleged against excise officialsHeld: There being no reason for such officials for im ilicating petitioner in lalse case of possession of charas, plea that excise people foisted incriminating articles upon petitioner not to be accepted. [P. 14/]D (iii) Prohibition (Enforcement of Haddj Order, 1979 (f. O. 4 of 1979) -- -Arts. 4 & 2(j) read with Criminal Procedure Code, 1898 (V of 1898) S. 103 Owning or possessing intoxicantOffence of Recovery of incriminating article Challenge to Held : Word "place" having been used, provisions of S 103. Cr. P. C. to be apol'cable only when (some) 'place' be searched by Investigating Officer No place searched in case Petitioner suspected to bs in possession of narcotics simply asked to get down from bus Held : Recovery of incriminating article (from person of petitioner) not to be held doubtful (merelv) on ground of non-compliance with provisions of S. 103, Cr. P. C. [P. 14l]<4 PLJ 1985 FSC 59 distinguished. (iv) Criminal Procedure Code, 1898 (V of 1898) -- S. 103 Sec : Prohibition (Enforcement of Hadd) Order, 1979 (P. O. 4 of 1979) -Arts 4 & 2 (j) [P I40J/1 Mr Nasir Saeed Shaikn, Advocate for Petitioner. Messrs Muhammad Aslam Uns & S. A. Rashid, Advocates for State. Date of bearing: 11-6-1985. judgment H Shaikh, J. The petitioner was tried by a Resident Magistrate Wah Cantt for offence under Articles 3/4 of Prohibition (Enforcement of HadJ) Order, S979 (hereinafter referred to as said Order) and convicted of the above offence and sentenced to R 1. foi two years and a fine of Rs 200/- or in default payment of fine to undergo further R I. for one month, it has not been specified by learned Magistrate in his j'idgrn nt dated 26 6 1984 as to whether the sentence has been passed for offcnc- under Article 3 or article 4 of the said Order. The petitioner challenged his conviction and sentence in appeal which was heard by Sessions Judge, Rawalpindi . The learned Additional Sessions Judge vide his judgment 9-4-1985 dismissed the appeal and maintained the conviction and sentence passed by the trial court. It was however, made clear by the appellate court that the conviction was only for offence under Article 4 of 'he said Ordinance. 2.. The petitioner has challenged the decision of the two courts below by this revision application. 3. Th; case of the prosecution is that on 27-7-1983 at 5.30pm. a checking party comprising of Excise and Police officials was waiting at check post Taxila.The party consisted of Mr Abdul Rashid Excise Inspector, Muhammad Anwar, Excise Constable, Muhammad Ashraf, Head Constable and others. It is alleged that a bus arrived from Peshawar side which was stopped by Abdul Rai>hid, Excise Inspector and the petitioner, who was travelling m that bus, was asked to get down, because he was suspected of being m possession of some narcotics. His person was searched and 1400 gm of chjras is alleged to have been secured from the folds of the sha/war 12 grams of charas was separated and sealed into a parcel for being sent to the Chemical Examiner, while the remaining quantity of charas was made into a separate sealed parcel. The petitioner was arrested and formal complaint was lodged by Abdul Rashid After usual investigation the case was sent up before the learned Magistrate First Class Wah Cantt, who tried and convicted the petitioner as stated above. 4. In support of the prosecution case there is evidences of P W. 1 Abdul Rashid, Excise Inspector, P. W. 2 Muhammad Anwar Excise Constable, P, W 4 Gulzar Ahmad and Muhammad Ashraf, Head Constable of Taxila Police Station. There are two other witnesses namely P. W. 3 Ahmad Hussain police constable and P W. 6 M hammad Arif, Head Constable whose evidence is of forma! nature Ahmad Hussain had only delivered the sealed parcel to Chemical laboratory, while Muhammad ArifH. C. had recorded the formal FIR. Both the courts below have relied upon the testimony of P. W. I Abdul Rashid, P. W. 2 Muhammad Anwar, P W 4 Gulzar Ahmad and P W. 5 Muhammad Ashraf the Investigating Officer, who have deposed that HOO gm. charas was recovered from the possession of the petitioner. Their evidence is supported by the Chemical Examiner's Report which has been produced as Ex. PE . 5. The appellant has denied that any charas was recovered from his person He has examined two witnesses in defence namely D. W. 1 Muhammad Afzal and D W. 2 Amir Bakhsh who have simply deposed that the petitioner is a person of good character. 6. The petitioner was also given an opportunity to give evidence on oath under Section 340 (2) Cr P C as amended by Ordinance Xll at 1985. In this tatement the petitioner stated that the incriminating article alleged to have been secured from the petitioner was in fact recovered by the police from nother person who was travelling with him in the same bus. He further stated that the real culprit was let off and the incriminating article was foisted pon him, 7. Mr. Nasir Saeed Shaikh, learned counsel for the petitioner has contended that there has been violation of provision of Section 103 Cr. PC, because no public man or respectable person of the locality was associated with the search In support of this argument he has relied on the case of uhammad Farooq v. The State (PU 1985 FSC 59), In this case ® Division Bench of this Court held that a vehicle including a 'flying coach' falls within the definition of 'place' according to Article 2 (j) of the said Order. Hence a search of the Coach taken by an Excise Inspector without associating respectable person of the locality, would amount to violation of the provisions of Section 103 Cr. PC. 8. The facts of the above case are distinguishable from the present case in which no vehicle was searched. Mr Abdul Rashid had stopped the bus, but did not take any search of the bus. He simply asked the petitioner to get down from the bui, because he was suspected to be in possession of narcotics. oreover the language of Section 103 Cr PC is very clear on the point as to under what circumstances its provisions are attracted. The word 'place' occurring in Section U 3 Cr. PC indicates that ts provisions are applicable only when a place is searched by an Investiga ting Officer. This'place'may be a bus, a tent, a vessel or even a vehicle according to definition of place laid down in Article 2 (j) of the ?aid Order. But no vehicle was searched in th resent case. We therefore, hold that the recovery of the incriminating article cannot be held to be doubtful on the ground of non-compliance with he provision of ection 103 Cr. PC. 9. The next point urged in support of the petition is that the Chemical Report Ex. PE is not in accordance with law because the Chemical Examiner has, without giving any reason, stated in one line that the parcel received by him for examination contained charas. It is contended that the Chemical Examiner should have given reasons for his opinion regarding the article being charas. In the absence of the reasons it should be deemed that the report is not proper compliance with Section 510 Cr. PC and must be rejected. In support of the above plea the learned counsel has relied on the case of Khalid Sultan v. The State [PU 1984 Cr. C. ( Lahore ) 224]. In this case a learned single Judge of Lahore High Court has held that the report of the Chemical Examiner even in respect of charas should be supported by reasons and that in the absence of the reasons the report shall be of no value. The learned single Judge has in support of his view relied on the cases of Mst. Gajrani and another v. Emperor (A. I. R. 1933 All. 394), Happu v. Emperor (A. I. R. 1933 All 837) Behram Sbeiiar Irani v. Emperor (A. I. R. 1944 Bom. 321) Sanity Kumar Roy v Chairman Jfssore Municipality and another (PLD 1971 Dacca 5) and AH Haider v. The State [PLJ 1981 Cr C. (Lah ) 137] The cases cited above involved articles which required thorough chemical analysis for coming to the conclusion about the nature of the articles. For example in the case of Mst. Gajrani the article which was sought to be examined, was arsenic m oison which was said to be the cause of murder. The nature of the"said article as arsenic poison could not have been determined without thorough chemical analysis and by applying necessary tests for coming to a definite conclusion. It was therefore, held in the above case that the report of the Chemical Examiner in respect of the article being arsenic poison, should have been supported by detailed reasons so as to enable the court to come to a definite conclusion without the necessity of calling the Chemical Ex aminer for cross examinations. In the case of Happu v. peror lso facts were similar i e. the article sent for chemical examination was arsenic poison which was said to have caused the murder and in this case also the report of the Chemical Examiner without detailed reasons was held to be valueless. Similarly in case of Sunity Kumar Roy v. Chairman Jessore Municipality, the question involved was whether Mustard oil secured by Food Inspector from a grocery shop was adulterated It was held in this case that report of the Chemical Examiner about adulteration should have been supported with reasons so as to be admissible in evidence under Section 310 Cr. PC. Adulterated article of food also requires thorough chemical analysis by applying necessary tests, s'milar to the one in the case of arsenic poison Hence it can be said that the report of the Chemical Examiner about an adulterated article of food not supported by reasons, would not be proper report to be relied upon by the court. In the fast case relied upon by the learned Single Judge i.e. All Haider v. The State, the report which was admitted in evidence under Section f 10 was that of a Ballistic expert about a fire arm. The report of an expert in such a case also needs to be supported by adequate reasons so as to enable the court to admit it in evidence under Section 510 Cr. PC. One more case referred to by the learned single Judge in his judgment is B hram Sheriar Irani v. Emperor (A. I. R. 1944 Bom 321) In this case also Chemical Examiner's Report related to adulterated food and it was held in the above case : "The weight to be attached to a report of a Chemical Analyser depends to a considerable extent on the reasons which the Chemical Analyser gives for the conclusion which he has arrived at, and in some cases, where the matter to be reported on is the presence of certain substances in the article submitted for examina tion, much would turn on the quantity of the incriminating sub stance found in the article. If the Chemical Analysis's report alone is to be considered sufficient, it should contain all the information which that officer himself would have been able to furnish if he had been examined as a witness". All the above cases are distinguishable from the present case in which the incriminating article recovered was charas. There art certain incriminating articles which do not require thorough chemical examination. For example opium is an article about which even an ordinary person, without the chemical analysis, can say that it is opium. The sama can be said to some extent about the charas which is the most common commodity in use B in this country. Now an Excise Inspector, who is supposed to deal with items like charas etc frequently during performance of his dutv, is supposed to know that the particular article is charas. In our view it i not strictly necessary that charas requires certificate from a Chemical Examiner regarding its being charas. As a rule only those articles ar? required to be sent to the Chemical Examiner about the nature of wbicn there is some doubt. For example heroin, adulterated food, poison particularly those found from stomach of a deceased person or alcohol sought to be detected from urine or blood of a person accused of having taken alcohol. The nature of these articles cannot be determined without detailed chemical analysis. The same cannot be said about charas. Mr. Abdul Rashid Excise Inspector and the Excise Constable who have recovered the incriminating article from the petitioner, have stated that the article was charas. There is no reason to doubt their statement that the article recovered by them from the petitioner was charai. 10. We are therefore, of the view that any defect in the report of Chemical Analyser should not reader the eac doubtful, Agata ifth petitioner bad any doubt about the nature of the article recovered from his possession, then he was at liberty to call the Chemical Examiner for cross xamination under Section 510 Cr. PC. which opportunity he did not avail of. II. The fact that some incriminating article was secured on the day of incident by Abdul Rashid is not denied by the petitioner even. His plea in his statement on oath under Section o40 (2) Cr PC was that the incriminating article was in fact secured from another person who was travelling with him in the same bus. He therefore, admits recovery of an article which was incriminating. His plea is that it was recovered from some body else, but it was foisted by excise people upon him. We do not find any reason to accept the plea of the petitioner that the excise people have foisted the incriminating article upon the petitioner. He has not alleged that the excise people had any enmity with him. There was no reason for Mr. Abdul Rashid and three other P Ws. who have deposed about the recovery of charas from him, to have implicated the petitioner in a false case of possession of charas. For the above reasons we hold that there is no substance in this revision petition which is dismissed. The petitioner is on bail. His bail bond is cancelled and he is remanded to custody to serve the remaining sentence. He shall, however, get benefit of the period of detention suffered by him during the trial. (TQM) Petition dismissed.
PLJ 1985 FSC 142 PLJ 1985 FSC 142 [Appellate Jurisdiction] Present : fakhre alam, J MUHAMMAD AYUBAppellant versus THE STATERespondent Criminal Appeal No. 143/1 of 1984, decided on 4-12-1984. (i) Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (VII of 1979)
S 12/18 read with Pakistan Penal Code, 1860 (XLV of 1?60)- S.377/511SodomyOffence ofConviction forAllegation regard ing accused having committed sodomy with boy of 12 years totally belied by medical evidence No mark of injury found on body of victimPersons allegedly arriving on scene of occurrence closely related to victimElement of kidnapping and abduction also not presentHeld Appropriate offence committed being one under S. 377 read with S 3ll, PPC, conviction of appellant under S. 12 of Ordinance VII of 1979 to be set aside. [P. 144] A, B & C (ii) Pakistan Penal Code, 1860 (XLV of I860)
S.377/511See : Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (VII of iy79)~S. 12/18. [P. 144] A, B & C Mr. M. Bilal, Advocate for Appellant. Khawaja Nazir Ahmad, A.A.G. (NWFP) for State, Date of hearing : 4-12-1984. judgment Muhammad Ayub aged 55 years was put in the attack to face trial under Sections 12/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was tried by the Additional Sessions Judge, Abbottabad, who on conclusion convicted the accused under the offence charged and sentenced him to four years R. I. and a fine of Rs. 5uOO,- or in default to suffer further six months S. I. The period spent under trial was ordered to be deducted from the period of sentence. Muhammad Ayub convict has assailed his conviction and sentence by filing an appeal to this Court. 2. Succinctly stated the facts that can be gleaned from the evidenceon record are that Muhammad Tahir aged about 12 years resident ofDobathar n 2-2-1984 at about 4 p m after attending a tuition class atKamran School Abbottabad proceeded for his village, Near the Tanchi Chowk bbottabad he met Muhammad Ayub accused who was boarding on hire passengers in his Suzuki No. 2543 ADA . Muhammad Tahiroccupied the ront seat of the Suzuki and the Suzuki driven by MuhammadAyub left for the village Boi Di Gali. On reaching there all the passengersalighted from the Suzuki. Muhammad Tahir also wanted to alight from he Suzuki but the accused Muhammad Ayub suggested him to have an outing o which the latter agreed. Both of them by means of Suzuki proceeded onwards and the Suzuki wa» parked at a secluded place. Both roceeded on foot ahead at some distance when Muhammad Ayub caught hold of Muhammad Tahir and took off Muhammad Tahir's rousers. The accused threatened Mubammad Tahir not to raise alarm, otherwise he would be put to death Muhammad Tahir was laid on the round and the accused started committing carnal intercourse with him. The complinant raised hue and cries due to pain which attracted Abid P. W. y hat time Muhammad Ayub had satisfied himself, but both have not put on the trousers. Abid P. W. caught hold of accused. Both the accused and the boy ater put on their trousers. In the meantime Nazir and Muhammad Bashir P. Ws. also arrived there. Muhammad Ayub tried to make good his scape but be was apprehended by Nazir, Abid and Bashir PWs. During grappling with the PWs. the accused sustained few abrasions. The accused and uhammad Tahir complainant and the PWs. by means of Suzuki driven by Muhammad Bashir PW wentto'the Police Station Mirpur where Muhammad ahir lodged the report. It was recorded by Muhammad Riaz A.S.I. The injury statements of the complainant as well as of the accused were prepared nd they were sentto the hospital for medical examination. Doctor Muhammad Salim (P.W. 5) examined Muhammad Ayub accused on 2-2-1984 and is indings wereas under : '(I) I found the said Muhammad Ayub capable of committing sexual intercourse and there was nothing to suggest that he was ncapable to commit any sexual intercourse. His agj in my opinion is about 50 years. (1) No stains of semen, were foimd cm penis, scrotum and legs. (3) Seminal stains on shalwar and shalwar was handed over to Police. No scratches on his knees. (4) Scratch present on th? back of the left leg (pqpleteal fossae). (5) Salicmand tender le/'t mandible. (6) Swabs were taken from the pubeck scrotum and unethra to confirm the absence or presence of sperm. My report in this behalf are Ex-PWi/t and n Ex PW5/2 respectively." On the same day he examined Muhammad Tahir the victim and observed the following : "(1) No scratches on the buttocks and anus. (2) No semenal stain on his shalwar or body. (3) No scratches on his knees. (4) No mark of laceration on anus, and in my opinion he is not exposed to any sexual assault. (5) Bleeding from nose but stop at the time of examination," 3. At the trial Mahamrnad Tahir the victim furnished direct evidence of the delict and stuck to thi allegation that the accused had committed sodomy ith him which is totally belied by the medical evidence. The three persons mentioned in the FIR who arrived on the scene of the occurrence namely bid (P.W 4), Muhammad Bashir (P W. 6) and Nazir the abandoned PW are closely related with Muhammad Tahir. The three of them and Muhammad yub accused used to derive Suzuki on hire. The scene of occurrence is a deserted place as indicated by the site plan. One wonders how and why all the ersons were present in the vicinity to mmediately arrive at the scene of the crime. No mark of injury was found on the body of the victim who is a boy of 12 years of age and a student of seventh class. Section 12 of the Offence of Zma (Enforcement of Hudood) Ordinance, 1979 makes kidnapping or abduction of a person who may be subjected to un-natural lust as an offence. In the present case element of kidnapping and abduction is absent. According to the victim he and the accused weri only five paces away from the Suzuki for enjoying the nature when an attempt to commit sodomy was made. 4. On these facts and circumstances the appropriate offence commit- (ted was one under Section 377 read with Section 511 PPC. 1 5. Accordingly the conviction and sentence of Muhammad Ayub aopellant under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 19^9 is set aside. He is convicted under Section 377 read with Section 5.11 P P C He was arrested on 2-2-1984 and throughout had remained under trial prisoner whereafter he was convicted on 5-9-19S4. He was released on bail by this Court on 25-9-1984. 6. Taking into consideration the age of he accused who has grand children and the period spent by him as under trial prisoner, the sentence already ndergone would meet the ends of justice. It is ordered accord ingly With the above modification in the offence and the sentence the appeal is dismissed. (M1Q) Order accordingly,
PLJ 1985 FSC 145 PLJ 1985 FSC 145 [Appellate Jurisdiction] Pftient : ch. muhammad siddiqub & maulana malik gholam ali, JJ MUHAMMAD NAWAZ-Appellant versus THE STATERespondent Cr. Appeal No. 61/1 of 1985 (also Cr. Appeal No. 62/1 of 1985) decided on 22-4-1985. (i) Offence of Zias (Enforcement of Hodood) Ordinance, 1979 (VII of 1979}
S. 12 read with Pakistan Penal Code, 1860 (XLV of 1860) S. 377 Sodomy Offence of Evidence, a preciation ofAcquittal basis for Benefit of doubtStatement of complainant (victim) belied by medical evidenceReports of chemical examiner neither helping prosecution case nor providing required independent corroboration Marks of any violence around anal region of complainant having not been found by doctor, act of sodomy not committed by force- No necessary independent corroboration of compiainant available on recordHeld : Prosecution case, being highly doubtful, benefit of doubt to be given to appellant. [P. 151]^, B & C (II) Pakistan Pentl Code, 1860 (XLV of 1860)- -- S. 377See : Offence of Zina (Enforcement of Hadood) Ordi nance, 1979 (VII of 1979)S. 12. [P. 1SI]A. B&C Mr. M. Bilal, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for Respondent, Date of hearing : 22-4-1985. judgment Muhammad Siddiqne, J.The learned Sessions Judge, Attock vide impugned judgment dated 2-3-1985 held Muhemtaad Nawaz and Sarfraz alias Kala accused guilty under Section 12 of the Offence of Zina (Enforce ment of Hudood) Ordinance, 1979 (here-in-after referred to as the Ordi nance) and sentenced each of them to undergo R. I. for 10 years plus whipping numbering 15 stripes and a fine of Rs. 5000/- or in default of payment of Sne further R. I. for one year. Tne trial court further found both the accused guilty under Section 377 PPC and sentenced each of them to undergo R I. for 10 years plus fine of Rs. 5000/- or in default of pay ment of Sne further R. I. for one year. Both the substantive sentences of imprisonment were ordered to run concurrently. Muhammad Nawaz convict has challenged his convictions and sentences through Criminal Appeal No, 61/1 of 1985 while Sarfraz alias Kala convict has filed a separate Criminal Appeal No, 62/1 of 1985. Since both these appeals arise out of the same impugned judgment' they shall be disposed of together by this judgment. 2. In support of its case the prosecution produced 10 witnesses. Dr. Sultan Mahmood (P. W, I) on 6-6-1984 at 5.45 A. M. medically examined Hamid Tafseej an4 fpljnd the following iajuries oa his person :, "(1) An alleged case of sodomy on 5-6-84, there are no stains on the Clothes ; (2) An abrasion 1,5 CM x 0,75 CM on the posterior aspect of left elbow joint ; (3) Two small abrasions 1.5 CM x .75 CM and 1 CM x .25 CM on the back of chest left side in the scapula region ; (4) A small abrasion ,5 CM x .25 CM on the posterior aspect of right elbow joint ; (5) There was no mark of any violence around the anal region ; (6) The anal canal is congested and there are minute abrasions in the external anal sphinctas ; (7) Three anal swabs taken from the anal region, put in the bo'tle, sealed properly and handed over to the police for onward transmission to the office f the Chemical Examiner, Lahore for analysis and intimation of result. According to the report of the Chemical Examiner mark ' X' No. 2147/S dated (-8-84 the above swabs were stained with serasn. Ex. PA is the carbon copy of my msdicolegal examination report which is in my hand and is signed by me." In cross examination, this doctor admitted that in view of statement of injury No. 5 in Exh. PA he could say that the act of sodomy was not committed on the examinee by force. He denied the defence suggestion that the examinee was habitual victim of act of sodomy as the doctor did not notice any signs of his bcir.g habitual victim of sodomy. 3. Dr. S. M. Hussain Naqvi (P. W. 2) on 7-6-1984 at 11.00 A.M. medically examined Sarfraz accused. The doctor on examining him made the followng observations : "The examinee was a young man of about twenty years, possessed well-built physique. His testicals were well developed. His penis was also well eveloped, I observed the erection of his penis which was normal. Ejaculation was caused and collected his semen for analysis by he Chemical Examiner. Sarfraz wai capable of performing sexual intercourse". 4. H. C. Afzal Khan (P. W. 3) was at the relevant time posted as Muharrar Head Constable at Police Station, Saddar, Attock. On 6-6-1984 Raja Abdul Khaliq. SHO gave him a sealed parcel containing shalwar, one sealed bottle and an envelope for keeping them in his custody. On the following day the saii police officer again gave him a sealed bottle and an envelope and the witness kept ail these articles in the mall-khana On 27-6-1984 he gave all these articles to F. C. Faqir Muhammad for taking them to the office of the Chemical Examiner, Lahore According to this witness, so long as these articles remained in his custody, nobody tampered with them. F. C. Faqir Muhammad (P W 4) on 6-6-i984 took Hamid Tafseel, PW to DHQ Hospital, Attock for his medical examination, pro duced him before Dr. Sultan Mahmood who examined him After the examination, the doctor gave him a sealed parcel containing shalwar, one sealed bottle and an envelope which he produced before the investigating officer. On 27-0-1984 Muhairar Head Constable Afzal K.han, PW gave him ft sealed parcel containing shalwar, two sealed bottles and two envelopes for taking them to the office of the Chemical Examiner, Lahore which he delivered there the following day. So long as these articles remained in his custody no-body tempered with them. In cross examina tion, it is admitted by this witness that Muhammad Afzal^Khan, MHC gave to him other parcels of other cases also on 27-6-1894 These parcels were lying on a table in .the office of MHC when he gave them to the witness. F. C Said Rasool'tP. W. 5) joined the investigation of this case and v-ent to the spot alongwith the investigating officer who took into possession a piece of the string of the shalwar Exh. P. 1 from there vide memo. Exh. PC signed by him. In cross examination, this witness has stated that he went to the spot at 5.00 P. M. He and the Inspector Police alone went there on a suzuki which was driven by a driver. 5. Raja Abdul Khaliq, Inspector/SHO (P. W. g) is the investigating officer in this case. He has deposed that on 6-6-1984 he correctly recorded FIR Exh. PD. After recording the report this police officer sent Hamid Tafseel, PW under the escort of Faqir Muhammad, F. C. to DHQ Hospital for his medical examination. After the examination, Faqir Muhammad, F. C. brought to him a <ealed bottle, an envelope and produced tfar same before him Hamid Tafseel, PW produced before this witness his shalwar E%h. P. 2 which was taken into possession vide memo. Exh. PE in the presence of Muhammad Anf, PW who attested it. He made it into a seal ed parcel. He inspected the spot and prepared its site plan Exh. PF signed by him. During the inspection of the spot he took into possession piece of string Exh. P. l from there vide memo. Exh. PC He arrested the accused on 6-6-1984 and got Sarfraz accused medically examined fom DHQ Hospital, Attock on 7-6-1984. The doctor gave him a sealed battle and an envelope after his examination All the parcels, sealed bottles and envelopes were given to Afzal Khan, MHC tor keeping them in the malkhana and for transmitting them to the office of the Chemical Examiner for analysis. During the investigation of the case, he seized wagon No. RlK-7v53 vide memo. Exh. PG. He attested all the memos. correctly and recorded the statements of the prosecution witnesses. Hi prepared injury statement Exh PH of Hamid Tafseel, PW. In cross examination, this police officer has stated that he seized shalwar Exh P. 2 at 8.00 A. M. on 6-6-1984 and he got Hamid Tafseel medically examined on that day at about 4.00 A. M. He took shalwar into possession at the police station in the presence of Muhammad Arif, PW. He has ad nitted that in memo. Exh PE the words "Gawah-shud" were given against which no name was written Hi denied the suggestion that the doctor sent to him shalwar Exh P. 2 through the F. C. He went to the spot at about 10 00 A. M in the morning. F. C. Said Rasoo) was with him. 6. Aftab Abmad (P. W 7) has deposed that he was carrying on his business of tailoring at city Attock at the shop of Muhammad Arif, PW. Hamid Tafseel complainant also worked there as tailor with him On 5-6-1984, this witness and Hamid Tafseel, PW broke their fast at the shop of Atif Sttuated at Attock City and thereafter at about .45 P. M. vhty stopped doing their work. They came to the wagon stand. Hamid Tafseel. PW boarded a wagon from there for his village and the wjtness returned. Muhammad Nawaz accused was the driver of the wagon. Sarfraz accused was sitting on the front seat of the wagon. Two or three passengers were also sitting in the wagon. The wagon did not start in the presence of this witness In cross examination, this witness has stated that be knew Muhammad Nawaz accused previously because he had travelled in his wagon from Mirza to Attock City previously. The witness also knew Sarfraz accused because he used to drive a tractor, Sarfraz accused was not on friendly terms with this witness. The witness learnt about his name at the hotel where he used to sit for taking tea. Muhammad Nawaz accused belonged to village Sanjwal. He did not know the name of his father. Sarfraz accused also belonged to village Sanjwal. It is admitted by him that wagon continued leaving the stand for different villages till late in the night. 7. Muhammad Arif (P. W. 8) is the maternal uncie of complainant Hamid Tafseel. This witness joined the investigation of this case. The investigating fficer took into possession shclwar P. 2 of Hamid Tafsee!, PW vide memo. Exh PE attested by him. The investigating officer also seized piece of string xh. P. 1 from the spot in his presence vide memo. Exh PC signed by him. In cross examination, this witness has admitted his relationship with the omplainant. He has further admitted thai Aftab, PW, 7 is also his pupil. It is further admitted by him that Ramzan, PW is the husband of the niece of uhammad Ayub, PW. The shalwar was takeis into possession in the early hours of the night after the occurrence. He did not know if it was taken after the edical examination of the complainant or not. It was about Sehri time. 8. Muhammad Ramzan (P. W 9} has been disbelieved by the trial court. The last witness produced by the prosecution is Hamid Tafseel complainant, He has deposed that he was carrying on his tailoring business at the shop of his uncle Muhammad Arif which was situated in Civil Bazar, ttock. He used to go daily from the village in the morning and used to return to his house in the evening Aftab Ahmad, PW was also working there as ailor with him. On 5-6-1984, he closed bis business in order to return to his house at Sanjwal. At about 8.00 P. M after Aftorf, he came to wagon stand. ftab Ahmad, PW was with him and had come there to see him off The complainant boarded wagon No. R1K-7953 which was driven by Muhammad awaz accused and Sarfraz accus d was sitting at its front seat. No other person was sitting in the wagon at that time Three passengers came there and oarded the wagon. Yvhen the wagon stalled both the accused talked to each other which the complainant did not follow. On reaching near the village anjwal the complainant requested the driver to stop the wagon but he told him that he would return there after visiting the other viliage and would then let im get down from the wagon. One passenger alighted near the kass where the two other passengers got down in village Kawwa and thereafter they eturned. When the wagon reached near Dhok Tarbethi, Muhammad Nawaz accused stopped the wagon and told the witness that he would not go to illage Sanjwal as he bad to go to Dhak. Despite his request the driver did not agree to take the complainant to village Sanjwa! on his wagon. Tbe com plainant got down from the wagon. Sarfraz accused also got down from the wagon and started following him. Muhammad Nawaz accused called out of im hat he should do his work on that day. After a little while Sarfraz accused joined him and requested the complainant to allow him to commit sodomy with im. The complainant refused He then held out threats to the complainant and forcibly committed sodomy with him after falling him on the ground. He roke opened the string of his shalwar and after committing si-domy the accused ran away leaving the complainant there. Muhammad Ramzan, PW met he complainant on his way to the village and he told hiqi about the occurrence, He took him to the house where he narrated the ^tory to Muhammad Ayub, PW. His father took him to the police station wnere'he lodged the report Esh. PD signed by him. The Thanedar sent the complainant to hospital for medical examina tion where he was examined. Thereafter he produced his shalwar P. 2 before fhe Thanedar who took it into possession vide memo. Exh. PE His broken string of shalwar dropped at the spot which was Exh. P. i. la cross examination, he was confronted with his pofice statement Exb PD ' where he had not mentioned certain things which he had deposed before the trial court. In cross examination, this witness has stated that the place of occurrence was at a distance of 200 yards fram the wagon stand. Sarfraz accused committed the offence with the complainant at a slope situated at a distance of 4/5 feet from the metalled road. A Behk was situated near the place of occurrence about 40J yards. The complainant already knew both the accused as they belonged to his village. He denied the suggestion that he accompanied the accused in the wagon beyond the village with his consent. He did not raise any alarm when the accused did not allow him to get down from the wagon near his village. He has denied that he was immoral and bad falsely involved the accused in ibis case. It is further denied by him that he was habitual victim of the alleged offence. 9, Sarfraz alias K.a!a accused in his statement recorded under Section 342 Cr. P. C. de,.ied the prosecution allegations. When asked why this case was made against him, be stated as under : 'My house and that of the parents of Hamid Tafseai PW are situated in one and the same street in village Sanjwal. Generally there is a dispute between our families due to struggle between our children. The parents of Hamid Tafseel PW were therefore annoyed with me and other members of my family. The father of Hamid Tafseel PW is a hot tampered person. On the night of occurrence Hamid Tafseel PW came to the boose late. When his fatder admonished him he falsely attributed the allegation of sodomy against me." Muhammad Nawaz accused also in his statement denied the prosecution allegations and stated that he had been falsely invoivsd in the case for the reason given by his co-accused Sarf'raz and with a view to streagthen the case. The accused persons produced no evidence in defence. 20. The trial court vide impugned judgment dated 2-3-1985 convicted and sentenced both the accused persons as mentioned above. We have beard at length the counsel for the parties who have also taken us through the entire material available on the record. It is vehemently contended by Mr. M. Bilal the learned counsel for the appellants that the charge as framed does not make out any case against Muhammad Nawaz accused under Section 377 PC To appreciate this point, it is necessary to reproduce below the charge framed by the learned trial court : CH&RGE "I, Mian Habib-ur-Rebman, Sessions Judge, Attock liefeby charge you (1) Sarfraz alias Kala s/o Misrey Khan (2) Muhammad Nawaz s/o Sher Khan, both A wans by caster s/o Sanjwal, P. S, H&zro,, as under : the Chemical Examiner. No doubt, in certain circumstances the solitary statement of the victim can be made the basis of conviction but each case depends upon its own facts, in the instant case, the statement of the com plainant is rather belied by the medical evidence and the rep rts of the Chemical Examiner do not help the prosecution and do not provide the required independent corroboration The medical evidence of Dr. Sultan Mahmood as mentioned above directly conflicts with the testimony of the complainant As regards the reports of the Chemical Examiner Exh. PJ. Exh. PK and Exh. PL, they have rather made the prosecution case highly doubtful. According to M. C. Afzal Khan (P. W. 3) on 6-6 1984 Raja Abdul Khaliq SHO gave him a sealed parcel containing shalwar, one sealed bottle and an envelope for keeping them in his custody. On the following day, the SHO again gave him a sealed bottle and an envelope and he kept all these articles in the malkhana. On 27-6-1984 H. C. Afzal Kban, PW gave all these articles to F. C. Faqir Muhammad for taking them to the office of the Chemical Examiner, Lahore . According to F. C. Faqir Muhammad (P. W 4) on 27-6-1984 Afzai (Chan, MHC gave him sealed parcel containing, shalwar two sealed bottles and two envelopes for taking them to the office of the Chemical Examiner, Lahore which the delivered there the following day. Now let us see the reports of the Chemical Examiner. A perusal of Exh. PJ shows that the packet was received in the office of the Chemical Examiner on 12th of July, 1984 while according to Faqir M-iham nad. F. C (P. W. 4) he delivered this packet in the office of the Chemical Examiner on 286-1984. The learned State counsel is not in a position to explain this mistake about the receipt of the parcel in the office of the Chemical Examiner. It is suggested by the defence counsel that the possibility that this might be a different parcel of some other case cannot be ruled out. In any case, the prosecution cannot claim any benefit of such doubt or confusion. Similarly in Exh. PK the date of despatch is shown as 7ih June, 198+ instead of 27th June, 1984. 17. Accordmg to the medical evidence of Dr. Sultan Mahmoodl (P W. 1) there was no marks of any violence around the anal region ofj the omplainant and accordingly the doctor opined that the act of sodomy! was not committed on the examinee by force. In other words the defence) counsel nfers that the complainant can be presumid to be a coosenting party in the commission of this offence, anrf therefore, his testimony would require strong ndependent corroboration before any conviction is main tained on his testimony but admittedly no such independent corroboration is available en the record. 18. After taking into consideration the relevant facts and circum stances of the case, the cumulative effect created on our minds is that the prosecution case is highly doubtful and the guilt of the accused persons has not been proved beyond reafonable doubt. It is not disputed that acco'ding o Islamic Jurisprudence benefit of doubt must go to the accused. We feel that in the circumstances of the case, the appellants can legiti mately claim the enefit of doubt in this case. Accordingly while giving benefit of doubt to Muhammad Nawaz and Sarfraz alias Kala appellants, we accept these appeals, et aside their convictions and sentences and acquit them of the charge. They shall be released forthwith if not required in any other case. (Aq. By.) Appeals accepted..
PLJ 1985 FSC 152 [Appellate Jurisdiction] PLJ 1985 FSC 152 [Appellate Jurisdiction] Present : muhammad sjddiq d abdul qaddus qasmi, JJ MUHAMMAD BASHIRAppellant versus THE STATERespondent Criminal Appeal No. 128/L of 1984, decided on 27-5-1985. (i) Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979)
S. 7 Qaz/liable to Hadd Offence of Zina mattersFailure to establish prosecution caseEffect ofHeld : Imputation of zina unless proved to have been made with intention to harm reputation or hurt feelings of any person, mere failure of prosecution case (in zina matters) not to automatically establish charge of qazf against complainant/witness Held farther : Mere disbelieving certain witnesses (also) not necessarily to mean that such witnesses committed offence of qazf unless witness be further established to have made imputation of zina with similar intention to harm reputation or hurt feelings of that person. [P. 161 }4 (i!) Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979)- .Ss. 7 & n~~Qazf liable to hadd Offence ofConviction for Challenge toAppellant not shown to have levelled allegations of zina against complainant with intent to harm his reputation or hurt his feelings No motive or intention to falsely implicate complainant also alleged against appellant Statement made by appellant based on c^ear and positive allegations of zina levelled against complainant by mother of alleged "victim"Such "victim" also repeating allega tions of zina in her statement recorded under S. 164, Cr. P.C. Police, on other hand, finding her consenting party in offence of zina and therefore treating and arresting her as accused person alongwith . complainantParents of victim, however subsequently nt>t supporting prosecution versionHeld : Good faith and bone fide of appel lant having clearly been established, mala fide intention to harm reputation of complainant on part of appellant not proved by prosecution. [Pp. 16! & 162]£, C & D (Hi) Evidence Act, 1872 (I of 1872)
S. 43Previous judgment of courtRelevancy ofHeld : Previous judgment of court to be treated as additional piece of evidence to be considered like any other piece of evidence to determine truth or otherwise of fact in issue or relevant fact in subsequent caseHeld further : Finding in previous judgment being no finding of guilt or innocence of accused (for purposes of subsequent case), onus to still remain upon prosecution to prove guilt or innocence of accused. \?. \62]E PLJ 1985 SC 36 ref. Malik A. R. Arshad, Advocate for Appellant Mr. Noor Muhammad, Advocate for State, Date of hearing : 12-3-1985 JUDGMENT Muhammad Siddiq, J.The present appeal under »eciion 17 of the Offience of Quf (Eifjrcenunt of HiJd) Ordinance, 1979 (hereinafter referred to as the Ordinance) arises out of the following facts and circumstances. 2. The present appellant Muhammad Bashir had abducted Mst. Nadra. and taken her to village Dhorkot. Tehsi! Nankana where her Nikah was performed with him on 4 6-1977 The Nikahnama Exh. D, F, was registered according to the provisions of Muslim Family Laws Ordinance, 1961. Alauddin father of Mst Nadra got a case of abduction registered against Muhammad Bashirunder section 363.380. P. P C. in which Muhammad Bashir was acquitted under section 249A. Cr. P, C. by the trial Magistrate on 26-7-1980 Mst. Nadra while Irving with her parents filed a suit for dissolution of marriage against Bashir appellant but the same was dismissed on 25-1 1-1979 for non-prosecution. Earlier Muhammad Bashir had also filed suit for restitution of conjugal rights against Mst. Nadra which was decreed in his Favour on 1-3-1978. According to the defence, the matter was patched up with the parents of Mst. Nadra. While Mst. Nadra was living with her parents at Lahore , she was illegally taken away by Zahoor Ahmad complainant to his village Karol, Police Station, Manawan and was kept there for about two years and during this period she gave birth to a female child who died after a month or so. According to her, this female child was conceived from said Zahoor Ahmad. She again became pregnant from said Zahoor Ahmad. On 10-2-1981 Bashir appellant filed Criminal Miscellaneous No. 72-H/81 in the High Court at Lahore alleging therein that Mst. Nadra was kept by Zahoor and she be recovered. This petition was rejected with the observation that renudy by way of procee dings under section 100, Cr. P. C, was adequate. Accordingly Muhammad Bashir appellant filed an application under section 100, Cr, P. C. for the recovery of Mst Nadra before the Illaqa Magistrate. Lahore who of his own. before passing any order, summoned Mt. Rani, the mother of Mst. Nad-a and recorded her statement on 15-3-1981 (Ex,h. D K.) in which the inter alia made serious allegation against said Zahoor. This statement is reproduce below : to cross-examine her on the ground that she was not telling the truth. In cross-examination she admited that Zahoor was son of a cousin of her husband and was on visiting terms with them. She denied the suggestion that Zahoor accused developed illicit relations with Mst. Nadra and he had been committing Ztna with Msi. Nadra." The learned Judge vide judgment dated 20-9-1982 observed that out of the above e\idence nothing incriminating had been brought against the accused on the record. It was further observed that the charge aeainst the accused was the commission of Zina while not a single witness had been produced to prove this fact and even the complainant himself had stated that he never visited the house of the accused and have never seen them committing Zina and even Abdur Rashid, P W. was not able to give the names, parentage and other particulars of Mst Nadra accused and stated that he had heard every thing from the complainant and that be had given evidence due to enmity with the accused. The learned Judge further observed that Alauddin and Mst. Rani, father, and mother of Mst Nadra accused had clearly stated that she naver lived with Zahoor and it was Bashir complainant who had abducted her and left her in the house of her parents when she was pregnant. According to the trial Court, this evidence of the prosecution did not connect the accused with the offence charged. While acquiting the accused, the learned Judge observed as under :"I hold that Bashir complainant has brought a false cas of Zina against the accused and ras not been aole to prove the same, therefore, the accused would be at hbsrtv to file a case of Qazf ag.inst him and Abdur Rashid, P. W." j. On the basis of the above observation of the Court, Zahoor Abroad ..ornpla'nant on 7 -9-1983 filed a complaint under sections 7, 3 and 5 of Qazf Ordinance against Muhammad Bashir only. This complaint was initially filed in the Court of lla qa Magistrate who forwarded the same to the Court of Sessions as the offence was exclusively triable by that Court Finally this case was entrtsed to Mr. Iftikbar Hussain, Additional Sessions Judge, Lahore who charged the accused under section 7 of the Qazf Ordinance. 4. In support of bis case, Zahoor Ahmad complainant himself appeared as P. W. 1 and then closed his evidence. 5. Muhammad Bashir accused in his statement recorded under sec tion 342, Cr P. C denied the prosecution allegations. According to htm, be did not know Zahoor compiainant before the registration of the case of Zina against him but he came to know hira after the registration of the said case. He admitted that he got registered a case of Ztna against Zahoor complainant on 19-9-1981 but no? against Mst Ndctra at Police Station, Manawan. According to him, the case was bona fide and based on proper evidence. It is further stated by him thai Mft Nadra was recovered by the police from the^ possession of Zahoor complainant and her statement under section 164, Cr. P C, was got recorded by the police wherein she stated that Zahoor complainant had been committing Zlne with her. She had also stated in that statement that as a result of illegal with hsr by Zahoor complainant %, child wa born to hr who died after 1^ months,. When asked why this case was made against him, he stated as under : "The complainant is taking advantage of the judgment dated 20-9-1982 passed by Mehr Muhammad Nawaz, Additional Sessions Judge, Lahore. H; is isconceived. He should think his stars for his acquittal. The Case was registered as State case. It was not handled properly by the State functionaries esponsible for prosecuting the case. I was married with Mst. Nadra on 7-6-1977. Nikahnama was registered according to the provision of Muslim Family aws Ordinance. Alauddin father of Mst. Nadra, got registered a case of abduction against me. I was acquitted on 26-7-i9i
0. The parents of Mst. adra ook Mst. Nadra with them Mst. Nadra filed a suit of dissolution of marriage against me which was dismissed. I filed a suit for restitution of conjugal ights against Mst. Nadra which was decreed in my favour. The matter was patched up with the parents of Mst Nadra. When J inquired from the arents of Mst. Nadra as to the whereabouts of Mst Nadra, I was informed by Mst. Rani, the mother of Mst Nadra that Mst Nadra was with Zahoor hmad complainant who was related to them. She also informed that Mst. Nadra was detained by Zahoor Ahmad complainant against her wishes. On he basis of this information 1 filed an application under section 100, Cr. P. C. in the Court of Ilaqa Magistrate, Badami Bagh Lahore for the recovery of Mst adra. The learned Court suo motu called Mst. Rani as a Court witness in that proceedings for the recovery of Mst. Nadra. Mst Rani appeared in theCourt of Mr. Abdul Matloob Khan, M. I. C. Lahore on J5-3-1981, wherein she made a statement that the complainant Zahoor Ahmad had kept Mst. Nadra ith him without any Nikah and as a result of illegal intercourse achild was born to Mst. Nadra which died later on. I obtained a copy of the statement of st. ani and submitted an application to the D. !. G., Lahon. It was registered in the Office of S.P. City Lahore vide diary No. 806 dated 15-7-1981. On the basis of said application the police of Badami Bagh Police Station recovered Mst. Nadra from the house of Zahoor Ahmad complainant at village Karol War. Mst. Nadra was delivered to her parents. The application was marked to Police Station Manawan as according to the police the incident took place in the jurisdiction of Police Station Manawan. When that application reached Police Station Manawan, A. S. I. Muhammad Anwar contacted me on I9-9-19H1 at Bilal Gunj where I was residing in those days. My statement was recorded by him and a case was registered accordingly which was based on the statement of Mst. Rani. On 20 9-1981 the statement of Mst. Nadra was recorded by Ch. Abdul Haq. M I. C. Lahore under section 164, Cr P. C. In that statement she had stated that Zahoor Ahmad complai nant had been committing Zinc with her and that she was pregnant for 6 months as result of Zina. The case against Zahoor Ahmad was investi gated by the State agency. During investigation the police came to conclusion that it was not a case of Zina-bil-Jnbar but a case of Zina and Mst. Nadra was also liable as such, she was also challaned alongwith Zahoor Ahmad complainant. Since the daughter was facing trial, the father and the mother, wanted to save their own daughter. They did not support the prosecution case in the trial Court, To save their daughter they told lie sd sided with Mst, Nadra, The complainant also got benefit of this I. had ao direct enmity with. Zahoor Ahmad complainant »
against Zahoor Ahmad yet he stated that he had not visited village Karol and had not seen accused committing Zina iih ach other. The reason was obvious that his information was based upon the statement of Mst. Rani Exh. D. K, Thus the stand taken up by uhammad Bashir in the earlier case in his complaint recorded by A. S, I Muhammad Anwar and bis subiequent statement before Mehr Muhammad Nawaz, Additional Sesiioni straifht-forwsrd manner deposed that he never saw the accused commit ting ZiHa with each other but the documents speak of this. He had not even visited village Karol where Zahuor and Mst. Nadra were living at the relevant time. This clearly indicates that the case of the prosecution did not succeed due to the statement of Bashir but due to certain other factors indicated above Zahoor Ahmad complainant has not alleged any motive or intention on the part of Bas>h>.r accused to falsely implicate him in that case. Similarly the present accused Muhammad Bashir has not alleged aay such enmity against Zahoor Ahmad. The mam grievance of Zahoor _ complainant in the earlier case could be agsinst Alauddm and bis wife Mst, Rani who made serious allegation of 'Lina against Zahoor, It may also be mentioned that Mst. Nadra after her recovery from the house of Zahoor Ahmad complainant, she went to her parents and not to her alleged lusband Bashir Ahmad accused. Thus in the circumstances of the case the good faith and hona fide of Muhammad Bashir accused is clearly establishsd. In any case the prosecution has not been able to establish his mala fids intention to harm the reputation of Zahoor Ahmad complainant. II. Another grievance of the learned defence counsel is that the trial Court has been influeneed by the observation made by Mehr Muhammad Nawaz, Additional Sessions Judge, Lahore , in his earlier judgment. According to the learned counsel the prosecution should have indepen dently established the charge of Qnzf against the accused by producing direct and positive evidence against him. In the instant case the prosecu tion produced only Zihoor Ahmad complainant. Reliance is also placed upon Atta Muhammad's case (PLJ 1985 SC 36) No other witness was produced by the prosecution to prove the allegation of Qaz/againit him. The learned counsel for complainant Zahoor Ahmad oa the other hand says that the trial Court was legally justified to rely upon the judgment of Mehr Muhammad Ntwaz, Additional Sessions Judge, Lahore . We do not "gree with this contention. No doubt Mehr Muhammad Nawaz could tiake such observation against the present appellant but the trial Court was not bound to act on the finding arrived at by Mebr Muhammad Nawaz, Additional Sessions Judge The previous judgment of Mehr Muhammad Nawaz would show the existence of the finding on that particular fact, but it would not show that such finding was necessarily correct because the existence of the previous judgment may be relevant but the truth of it is not relevant. In other words all that the previous judgment of Mehr viuhammad Nawaz would show is the existence of the judgment itself or of the fact that a particular finding relevant to the fact in issue was decid ed in a certain manner But it would be no proof of the fact that the decision given therein was correct. Therefore, in such cases the only jurpose for which the previous judgment could be used « r to treat the existence of such a judgment or finding as an additional piece of evidence to be considered like any other piece of evidence to deternvne the truth or otherwise of a fact in iss >.e or the relevant fact in the subsequent case. That finding of Mehr Muhammad Nawaz would not amount to a finding of guilt or innocence of the accused. The onus would still remain upon the proscution to prove the guilt of the accused beyond reasonable doubt It is not denied that such finding by the earlier Court could be due to so many reasons Muhammad Bashir was not the only witness for the prose cution in that case. As indicated above, Alauddin and his wife Mst. Rani, father and mother respectively of Mst. Nadra, were most important wit- Besses for the prosecution but they did not support the prosecution case, similarly Abdur Rashid was another important witness who also did support the prosecut ion. Moreover, Bashir was not an eye-witness of the occurrence. He was only the complainant in that case. It was due to cumulative effect of these pieces of evidence that the prosecution case did not succeed and accused persons were acquitted. Another circumstance which goe<= against the complainant is that according to the observation of Mehr Muhammad Nawaz, the proceedings under Qazf Ordinance were to be initiated against the present appellant Muhammad Basbir and Abdur Rashid P. W. but the complainant decided to prosecute only the present appellant and did not initiate any such proceedings against said Abdur Rashid. According to the defence counsel, this indicates his mala fide against the ,/resent appellant, 12. After taking into consideration the relevant facts and circum stances of the case, we have reached the conclusion that the prosecution has not established the guilt of the accused beyond any reasonable doubt. Accordingly, we accept this appeal, set aside the conviction and sentence of Muhammad Bashrr appellant and acquit him of the charge. He is already on bail and his bail bonds shall staa d discharged. Appeal accepted
PLJ 1985 FSC 163 [Appellate Jurisdiction] PLJ 1985 FSC 163 [Appellate Jurisdiction] freient : mufti shujaat An qadri & fakhruddin H. sheikh, JJ MUMTAZ RIAZ-Appellant versus THE STATERespondent Jail Criminal Appeal No, 64/1 of 1^85, decided on 29-9-1^85 (f) Prohibition (Enforcement of Hadd) Order, 1919 (P. O. 4 of 1979)
Arts 4 & 2 T r?ad with Criminal Procedure Code, 1898 (V of 1898) 3s 30 & '2 Owning or possessing heroin -Offence of Convic tion fcr Si 'giitrate 1st ClassTrial byValidity ofChallenge to Wore than 10 grams of heroin allegedly secured frofti accused Held : Magistral; 1st Class not to be empowered even to take cogni zance of such case i nunishable with impris
nment for life) Magistrate trying and conv ::ng aossllant for possessing 30 grams of heroin and 20 grams of op'.uti not describing himself as Magistrate empowered under S 30 of Cr P. C Held : Sentence of 5 years K. I. passed by such Magistrate to be null and void. [P. \65]A & B AIR 1934 Lab. 361 ; AIR 1933 Bom. 58 & PLD 196! Lah. 990 rel. (H) Criminal Procedure Code, 1898 (V of 1898} Ss. 30 & 32-See : Prohibition (Enforcement of Hadd) Order, 1979 (P. O. 4 of i979-Arts, 4 & 27. [P. 165]A & B Mr. Muhammad Bashir Kiani, Advocate for Appellant. Mr. Inamvl Haq, Advocate for State. Date of bearing : 29-9-1985. judgment Fskhnarfdir. H. Sbeikh, J.The appellant was tried by Syed Muzaffar Hussain Zaidi, ADC (G) Magistrate 1st Class Attock for an offence under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979 having been found in possession of 30 grams of heroin and 20 grams of opium. The Seamed Magistrate recorded the statement of some of the prosecution wit nesses. Before the conclusion of the entire prosecution evidence, the appellaat volunteered to confess the guilt whereupon his statement was recorded. Thereafter the learned Magistrate convicted him under Article 4 of the sbovc Order and sentenced him to suffer R, 1, for 5 years a fine of Rs, 5000 or in default of payment of fine further to undergo S. I. for six months and also to suffer whipping by 10 stripes. This judgment by the above learned Magistrate is dated 2l-5-rJ84, whi;h has been challenged in this appeal. 2, A perusal of th; record shows that the charge was framed by the Magistrate describing himself as Magistrate 1st Class. The statement of one prosecution witness and that of the appellant have also been signed by the learned Magistrate describing himself as Magistrate 1st Class, Even the order of he conviction has been signed as Magistrate 1st Class In the title of the case also, Syed Muzaffar Hussain Zaidi described himself as ADC (G)j'Magistrate st Class Attock. 3. The learned counsel for the appellant has argued that Magistrate 1st Class was not empowered either to entertain this case or to pass a sen tence of 5 years. We had written to the Magistrate to enquire whether he was empowered under Section 30 Cr. P. C. His reply was that he was invested with power under Section 30 Cr. P. C. in October, 1973. 4, Be that as it n?ay, the fact remains that Syed Muzaffar Hussain Zaidi had tried this case as a Magistrate 1st Class and not as a Magistrate empowered under Section 30 Cr. P. C. Mr. Bashir Ahmad Kiani has in this connection referred to the case of Emperor v. Sukhdeo Raj [A. 1. R, 1934 Lahore 361 1)] in which it was held that where a Magistrate exercising powers under Section 30 does not sign himself as a Magistrate exercising owers undir Section 0, he cannot pass a sentence in excess of the powers which are normally conferred upon an ordinary Magistrate of the First Class. The earned Single judge who decided the above case had, in support of the above observation relied upon the decision of ths Bombay High Court in case of Ram chandra Gensh Khadkikar v. Emperor (A. I. R. 1933 Bom. 58). This case was decided by a Special Beach of the Bombay High Court consisting of three earned Judges. 5. Mr. Inamul Haq learned counsel for the State has also supported the view that Syed Muzaffar Hussain Zaidi acting ADC (G)/MlC could not have aken cognizance of this case or pass a sentence of more than 3 years, in spite of his being a Magistrate under Sec'ion 30 Cr, P C. because during the trial he id not describe himself as a Magistrate under Section 30 Cr. P. C. He has also refened to the case of Abdur Rashid and another v. The State PLD 1961 (W. P.) Lahore 990}. In this case the learned Magistrate 1st Class who was invested with Section 30 powers had decided a case under ection 326/34 PPC but did not describe himself as Section 30 Magistrate during the trial. The Seamed Magistrate passed sentence of 1 years R. I. It was held by the learned Single Judge of Lahore High Court that the sentence passed by Magistrate 1st Class in exercise of his power as such was null and void because he did not describe himself as Magistrate under Section 30 nor did he sign the judgment as a Magistrate under Section 30. In view of the above legal position, the case was remanded for re-trial by a competent Magistrate. In taking the above the learned Judge had referred to the case of Mahi v Emperor (17 Cr. L. J, 461) which has also been referred to by Lahore High Court in the case of Emperor v. Sukhdeo Raj 6. An offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 is not triable by a Magistrate 1st Class if the quantity of the heroin alleged to have een secured from the accused is more than 10 grams, as the offence would, according to the amendment by P. O. 12 1983, would be punishable with imprisonment or ife. The case was triable by a Sessions Judge or at least Magistrate empowered under Section 30 Cr. P. C, The Magistrate 1st Class was not empowered even to take cognizance of the case, 7, As the sentence of 5 years R. I. passed by the Magistrate 1st Classi is null and void hence in view of the decisions cited above, wita which wel are in respectful greement, he appeal is allowed and conviction and sen-j tenc« are set aside. The case shall row go the District Magistrate Attock! who shall try it himself or entrust it to Magistrate mpowered under Sec tion 30 Cr. P. C. other than Syed Muzaffar Huisain Zaidi, for fresh trial. As the appellant has remained in detention for more than a year, we direct that he hall be released on bail on furnishing surety in the amount of Rs. 25,000 with person! bond in like amount to the satisfaction of the trial court. (TQM) Appeal allowed,
PLJ 1985 FSC 165 PLJ 1985 FSC 165 [Original JarisdietioEJ Present : Gut, muhammad khan, CJ ; mufti shujaat An qadrs & fakhruddin H. shukh/jj MAQBOOL HUSSAfN QURESHI Petitioner versos FEDERAL GOVERNMENT OF PAKISTAN-Respoadent Shanat Petition No, 25/1 of 1984, heard and decided on 22-iO-!985. (Si National Bank of Pakistan (Staff Service) Rules, 1980
R. 15(1) read with Constitution of Pakistan, !97jArt, 203D - National Bank of Pakistan Employees ofProtection of -Rule regardingRepugnancy to injunctions of IslamCase of employees of National Bank of Pakistan already held to be distinguishable from that of civil servants Representation to higher authority being no£ barred, plea about arbitrary use of power (by competent authority) also remaining unjustified-Held : National Bank of Pakistan being commercial organization, (impugned) rule 15(1) (of Staff Service Ruies) not to be repugnant to Sharia, [P, 166JS& C (ii) Islamic Law & Jurisprudence -JusticeConcept ofHeld : Denial of something in which (particular) person has no vested right to be no injustice. [P 166],'! Rana M. F Rehman^ Advocate for Petitioner, judgment Gul Mahammad Khan, Chief Justice The learned counsel assails through this Shanat petition the rule 15(1) of the National Bank of Pakistan(Staff Service) Rules, 1980 mainly on the following grounds : (a) The employees of the National Bank of Pakistan have become civil servants Uer the Back was nationalised and therefore they have the projection of Show Cause Notice as held in S.S.M. No.263(A/8 (ft) It is the responsibility of the Government to provide job/employ ment to every citizen and therefore, the protection will be available to all those persons who have been givtn the jobs : (c) As the protection is provided to 'workmen" of the National Bank of Pakistan , the rules of the same terras and conditions suffer from dis crimination and therefore, repugnant to Islam ; (d) The omission of the protection in the case of the Officers is against 'jdl' and advances 'fasad' ; (e) The impugned rule allows arbitrary use of power by the competent authority and is therefore, liable to be struck down ; (/} The same rule reduces the employees to the level of the private servants and leaves them at the whim and caprice of the employer, 2, We have heard the learned counsel at length bat do not find any justification to take a view different from the one already taken, A similar matter bout the same Bank came up before this Court in S. P. No. 9/K. of 19x3 (Islam Hussain v. National Bank of Fakisiau) [PLJ 1984 FSC 138] wherein 3 ench f six Judges of this Court held sfaat the case of the such employees was distinguishable from those of the civil servants in S.S.M. No. 204/P/83, SSM 8-- S/S4, S.S.M. No, 71/B/84 etc. 3. It will also be useful to reproduce the following paragraphs (50 to 53) of the judgment in S S.M. No. 263/P/1983 foi facility of ready reference to say that the respondent Bank, being a commercial under taking its employee would not enjoy the above said protection : (50) "One of the grounds of safeguard of Civil Servants rights is thai the government is under a duty to provide employment to people. Consequently it cannot throw out its servants except for cu«e. As will be seen later there is ample justification in sharia for this" (5!) "This principle cannot apply to private servants other than civil servants unless any law is made for safeguard of tacit interest or service tenure." (52) "Applying this principle it would be clear that the service of Cantonment Board as constituted under the authority of Cantonments Act II of 924 which is a local authority or of the WAPDA and Universities which are Statutory Corporations cannot bs held to be entitled in sharia to any other safeguard xcept safeguards pointed ouf in the above judgment of Daryyab Yoasaf Qureshi v. c. hairroaa WAPDA) PLD !983 FSC i7j'\ (53) "We are in agreement with the argument of the learned counsel of the Provincial Governments, Diouty Attorney Genera! and Vfoulvi Sirajui Haq. learned counsel for the WAPDA, that in some cases particular'y in respect of statutory corporations denting wish commercial business it may not be n pnblic interest to provide such safeguards, Shariat Petition No. i/I of 1984, shariat Petition No 2 L of 1983 and Shariat Petition No, 3/L of 1983 are therefore liable to be dismissed. WAPDA Act and laws relating to Universities will be examined in other respects. The Cantonment Act II of 19 4 has been examined by the Council of Islamic ideology and it is unnecessary for this Court to re-examine it." 4. Even the other points have no merit. The workmen and officers are two different classes and as there is no discrimination in any of them the plea arries no weight. Further, there is no injustice when a person is denied something in which he has no vested right. The plea abJiu arbitrary use f power is also unjustified because a representation to another higher authoritv is never barrsd. Thus if there is any arbitrary or whimsical exercise of ower at one Isvel it naav be rectified at the other 5, In 'view of the above, we think that the National Bank of Pakistan is a commercial organization and therefore, the impugned rule 15(1) is not repusjnant o Sharia, This petition consequently, has no merit and is distressed. Petition dismissed
PLJ 1985 Karachi 15 [DB] PLJ 1985 Karachi 15 [DB] Present : abdul hayee kure'shi, C.3. & abdul razak A. thahim. J MUHAMMAD itYAS KHAN DARAKHSHAN -Petitioner versus MUHAMMAD and !1 Others Respondents Const. Petition No, D-772 of 1984, decided on 10-10-1984. (i) Land Revenue Act (W P. Act XVII of 1967) -- Ss. 161 & 11 read with Provisional Constitution Order (CMLA's 1 of 1981) Art. 9 Mukhtiarkar -Order of Appeal againstCom petency of Order of Mukhtiarkar set a ide in appeal by Assistant Commissioner Held : Appeal against order of Mukhtiarkar being competent before Collector (and not before Assistant Commissioner order of Assistant Commissioner to be ab initio illegal and without jurisdiction, [P. (ii) Provisional Constitution Order (CMLA's 1 of 19S1) -- Art. 9 read with Land Revenue Act (W. P. Act XVII of 1967) Ss 161, 164 & 11 Revenue matters Writ petition Competency of Order passed in incompetent appeal before Assistant Commissioner set aside by Commissioner- in further appeal Member, Board-of- Revenue, in revision rereading matter to Mukhtiarkar to take fresh decision according to law after observing all legal formalities Held : Commissioner and Member Board-of Revenue having (every) jurisdic tion to pass order in circumstances, constitutional petition against such orders to be misconceived and pre-mature. [P. 18]B & C (iii) Provisional Constitution Order (CMLA'a 1 of 1981) Art. 9-See : Land Revenue Act (W, P. Act XVII of 1967)- Ss. 16! & 11. [P. (iv) Land Revenue Act (W. P. Act XVII of 1967)- -- Ss. 161, 164 & 11 See : Provisional Constitution Order (CMLA's 1 of 1981)-Art. 9. [P. 18JB&C Mirza Ghiasttddin Baig, Advocate for Petitioner. Date of hearing : 10-10-1984. order This Constitutional Petition, has been filed by Mohammad llyas to chtlknge the orders of respondent No. 10, Commissioner, Karachi , and respondent No. 12, Board of Revenue, in connection with mutation of immovable property bearing Survey Nos. 870, 871 and 875 with buildings situated in Deb Tbano, Tapo Malior, Taluka Karachi. By this petition be .seeks the following reliefs : Declare that the orders of the respondents Nos. 10 to 12 attached with this petition and proceedings taken thereunder are without jurisdiction, illegal, void ab initio and of no legal effect. Declare that order of Assistant Commissioner, Karachi (East), in Appeal No. 2 of 1982 dated 31-8-1982, is a legal order and the issuance of Form VII in consequences to it in the name of the petitioner is valid and binding on the respondents. Declare that the proceedings initiated by the respondents have been mala fide in lav and facts. Declare that the respondents 1 to 9 have no locus standi to claim mutation and their entire approach is based on fraud and~ mis representation. Give and grant such other relief/reliefs as may be expedient in the interest of justice and circumstances of this case. 2. Briefly stated the facts are that one Mohammad Ahmed Saley, a South African of Indian origin, purchased immovable property being Survey Nos. 870, 871 and 875 with building, situated in Deb Thano, Tapo Malir, Taluka Karachi, in the year 1948. and entries were made in the record of rights in his name by Mukhtiarkar Malir. He died on 31-10-1971. His heirs were South African nationals and property was being looked ifjer by one Gbulam Mohammad Shaikh but khata in the revenue record emained in the name of the deceased Mohammad Ahmed Saley. 3. It is stated in the petition that the petitioner purchased the above land from respondent No. 1. Mohammad son of Ahmed Saley, tor the consideration of Rs. 75,000,'- in pursuance of agreement of sale executed by respondent No. 1 on 3-8-1960. The petitioner paid Rs. O.OOJ/- and re maining amount of Rs. 5.000/- was to be made on the registration of the said sale deed in favour, of the petitioner. The petitioner according to the terms and conditions of agreement dated 3-8-1960. got the physical posses sion of the property and used to enjoy all benefits such as rent etc. Inspite of several applications to revenue authorities the mutation was not made in his favour. 4. In the meanwhile, respondent No. 2 made an application to the Mukhtiarkar who recorded the statements of Ghulam Ahmed and others and mutated the khata of the above property in the names of heirs of the deceased. 5. Being aggrieved, the petitioner filed an appeal to the Assist nt Commissioner, Karachi (East), who set aside the order of Mukhtiarkar on the basis of alleged agreement of sale and the property was mutated in the name of petitioner, Mohammad Ilyas. The respondents filed an appeal to the Deputy Commissioner but the same was dismissed due to nonprosecution on 13-6-1983, hence they filed appeal to the Commissioner, Karachi who, after bearing the parties, set aside the order of the Assistant Commissioner on the ground that action on the agreement of sale duly attested by the Oath Commissioner, cannot be taken by the revenue officer. him by the Collector under the general or special orders of the Board of Revenue." 12. The appeals against the orders of Assistant Collectors of either grade, shall lie to the Deputy Commissioner who by virtue of section 8 |Land Revenue Act is a Collector ; as such we are of the view that appeal jagainst the order of Mukhtiarkar does not lie before Assistant Commis. ner, therefore, the order of the Assistant Commissioner ab initio is illegal and without jurisdiction The relevant section in Land Revenue !Code for the purposes of appeal is section 16!, which reads as Under : Section 161. "(1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a revenue officer as follows, namely : (a) to the Collector, when the order is made by an Assistant Collector, of either grade ; (b) to the Commissioner, when .the order is made by a Collector ; (c) to the Board of Revenue only on a point of law, when the order is made by a Commissioner ; Provided that : (1) when an original order is modified or reversed on first appeal, a further appeal shall not lie ; (/i) when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final. Explanation :(!) An order passed in review, modifying or reversing a previous order, shall be deemed to be an original order for the purposes of this section. (2) An order shall not be confirmed, modified or reversed in appeal unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of or against the order appealed from." |The revision could be Bled under section 164 of the Act. In these circum stances, the Commissioner (respondent No. 10) and Member, Board of Revenue (respondent No. 12), have jurisdiction to pass an order in Revenue matters. For the reasons stated above, this Constitution Petition is not only mis- [conceived but re-mature, aad we dismiss the same in limine. (TQM) Petition dismissed,
PLJ 1985 Karachi 18 PLJ 1985 Karachi 18 Present: saiduzzaman sidimqui, J In re : CIVII REFERENCE BY DISTRICT JUDGE, Karachi Civil Reference No. 95/1984, answered on 15-10-1984. Igtakigg Companies (Recovery of Loans) Ordinance (XIX of 1979) 6 fas amended by Banking Companies (Recovery of Loans) (Amenoinent) Ordinance (II of 19»3) -« Special CourtJurisdiction ofExtension ofEffect ofOther courtsExclusion of jurisdiction ofLegislature by enacting S. 6(4) of Ordinance XIX of 19/9 ousting jurisdiction of all other courts and conferring exclusive jurisdiction on "special court" in resgect of matters cognizable by such court- Jurisdiction of special court, however, excluded expressly in relation to cases involving sum of one lac rupees or less Subsequently, legislature amending definition of "special court" (by enacting Ordinance II of 1983) and also conferring jurisdiction on it in respe:t of cases previously specially excluded from its jurisdiction Held : Jurisdiction of "special court" having been extended (in respect of cases involving sum of one lac rupees or less also), juris diction of all other courts to be ousted in respect thereofSuch cases, held further, to stand transferred to special court. [Pp. 21 & 22]A Mr. Aziz Munshi, Deputy Attorney General and Mr. Sattar A. Shaikh, Additional Advocate-General, Sind on court notice. Dates of hearing : 12-9 & 15-10-1984. judgment This Reference under section 113 of the Code of Civil Procedure has been made by the Distt. Judge, Karachi, for opinion of this court on interpretation of section 6 (4) of the Banking Cpmpanies (Recovery of Loans) Ordinance, 1979 Notices of this Reference wire issued to the Advo cate-General Sind and Deputy Attorney General, Karachi. Both Mr. Aziz Munshi, the learned Dy. Attorney General and Mr. Abdul Sattar Shaikh, the learned Abdl. A. G. Sind, supported the Reference. The reference has been made in the following circumstances : Inspite of promulgation of Ordinance XIX of 1979 the suits in respect of a claim filed by the Banking Company against a borrower or by a borrower against the Banking Company in respect of or arising out of a loan where the amount did not exceed Rs. one lac were entertained by the civil courts having jurisdiction in the matter as the jurisdiction of a 'Special Court' under the Ordinance was excluded by section 6 (1) (a) of the Ordi nance in respect of such, cases. However, by Ordinance 2 of 1983 which came into effect on 30th January, 1983 the definition of 'special court was amended. A? a result of this amendment the Special Court created under section 2 (f) (i) became entitled to exclusively try all cases in which out standing amount of loan did not exceed Rs. one million or the trial of offences punishable under the Ordinance while all other cases under the Ordinance became cognizable by this court which is defined as a 'Special Court' under section 2 (f) (ii) of the Ordinance for such classes of cases. It is an admitted position that a ' Special Court ' has been constituted by the Federal .Government under section 2 (f) (i) of the Ordinance. The learned Disti. Judge, Karachi in a suit which was pending before him on 30-1-1983, covering a back loan, took the view that after 30th January, 1983 the 'Special Court' constituted under section 2 (f) (i) of the Ordi nance has exclusive jurisdiction to try all suits involving a sum upto Rs. one million and accordingly transferred that case as well as all such cases to the Presiding Officer, 'Special Court' Banking, at Karachi. T&e Presiding Officer of Special Court however returned all those cases to Distt. Judge, Karachi, relying on an opinion of Law Division, Government of Pakistan, that all those cases which were pending in the civil court by virtue of section 6 (2) (a) of Ordinance XIX of 1979 shall continue to be tried by those courts inspite of deletion of section 6 (2 (a) of the Ordi nance. The opinion of Law Division is quoted in the Reference as follows : "The cases pending in the Civil Courts by virtue of section 6 (2) (a) of Ordinance No. XIX of 1979 (which has now been deleted through section 6 of Ordinance No. II of 1963) are not be trans ferred to the Special Courts. The said cases shall remain pending in and shall be decided by the Civil Courts by virtue of section (6)(e) of the General Clauses Act, 1897. The above judgment of the High Court of Sind does not in any manner alter or affect this legal position." he Distt. Judge, Karachi has disagreed with the view of Presiding Officer, 'Special Court' and has referred the case for opinion of this court. It is true that section 6 (e) of the Genera! Clauses Act, provides that where a Central Act is repealed after the coming into force of General Clauses Act, 1897 then unless a different intention appears, notwithstanding such repeal, any legal proceedings pending on the date of such repeal may be continued in the same manner as if the Act or the Ordinance has not been repealed. Therefore the real question while considering the effsct of a repeal on the pending proceedings is to discover the intention of the legislature in the repealing provision. With this object in view, I will examine here, in detail section 6 and other provisions of the Ordinance XIX of 1979 both as it stood before the amendment of 1983 and there after. The original section 6 in the Ordinance reads as follows : "6. Powers of Special Court. (1) A Special Court shall (a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) ; (b) in the exercise of its criminal jurisdiction, try the offences punish able under this Ordinance and shall, for that purpose, have the same powers as are vested in the Court of an Assistant Sessions Judge under the Code of Criminal Procedure, 1898 (Act V of 1898) : Provided that, for the purpose of trial before a pecial Court, the provisions of Chapter XVIII of the said Code shall not apply : Provided further that a Special Court shall not take cogni zance of any offence punishable under this Ordinance except upon complaint in writing made by a person authorised in this behalf by the banking company in respect of which the offence was com mitted ; and effect of conferring jurisdiction on "Special Court" established under Section 2 (f) (i) of the Ordinance in respect of those cases as well wuich were specially excluded from its jurisdiction under section 6 (2) (a) of Ordinance XIX of 1979. As a result of this extension in the jurisdiction of "Special Court" to such cases the jurisdiction of all other courts are ousted in respect thereof as provided under Section 6 (4) or the Ordinance, such cases also stood transferred as provided further in section 6 (4) of the Ordinance, to the Special Court. The District Judge was, therefore, perfectly justified in ordering trans fer of all such cases to the Presiding Officer, " Special Court ". The Refe rence is decided accordingly. A copy of the order may be sent to the District Judge, Karachi for his guidance. (TQM) Answered accordingly.
PLJ 1985 Karachi 22 PLJ 1985 Karachi 22 Present : tanzil-ur-rahman, J Syed ZAMIN HUSSAIN ABIDIPetitioner versus Mst. MUBARAK BANG and 2 OthersRespondents Const, Petition No. S. 119 of 1984, decided on 21-10-1984. (i) Family Coarts Act (W. P. Act XXXV of 1964)-
S. 7 (2) read with Provisional Constitution Order (CMLA's I of 1981)Art. 9Family suitInstitution ofList of witnesses- Summary of evidence inFailure to mention Effect of Held : Omission to mention summary of evidence of witnesses being merely bonafide. Family court to act within jurisdiction to grant time for giving necessary particulars of witnesses already named in list of wit nesses in interest of justiceHeld farther: Words "call any witness and produce any document at any later stage" being very wide in their scope, Family Court to (be competenet to) call any witness whether named in list of witnesses or not (at any later stage). ' [P. 25}A & C (ii) Provisional Constitution Order (CMLA's 1 of 1981) Art. 9 read with Family Courts Act (W. P. Act XXXV of 1964) Ss. 7 (2) & 14Interlocutory order-Challenge toWrit jurisdiction Exercise ofNo final decree passed or decision given in suits-Held : Order passed in fragmentation of proceedings not to be set aside in exercise of constitutional jurisdiction, [P, 25]F (Hi) Interpretation of Statutes Possible interpretationsPreference to Two interpretations of . certain provision of law possible Held : Interpretation given y Special Court or Tribunal to be respected and given preference to other possible interpretation, [P. 25}E PLJ 1974 SC 60 rel. (it) Jurisdiction
Decision in matterJurisdiction to makeEffect ofHeld : In case of there being jurisdiction to decide particular matter, mere fact of decision being incorrect not to render same without jurisdic tion unle ss such decision be sbown to be patently wrong. [P. 25]D (v) Justice
TechnicalitiesDecision onHeld : Justice to favour decision on merits and not to shut out evidence on mere technicalities. [P. 25]B (Ti) Family Courts Act (W. P. Act XXXV of 1964) Ss. 7 (2) & 14See : Provisional Constitution Order (CMLA's 1 of 1981)Art. 9. [P. 25]F . (vii) Provisional Constitution Order (CMLA's 1 of 1981)- Art. 9See : Family Courts Act (W. P. Act XXXV of 1964)- S. 7(2). [P.25]A&C Mr. Rehanul Hassan Faroaqui, Advocate for Petitioner, Date of hearing : 21-10-1984. judgment This is a Constitutional Petition filed under Article 9 of the Provisional Constitutional Order, 1981 read with Article 199 (wrongly stated as Arti cle 191) of the Constitution of Pakistan, 1973. 2. The petitioner filed Family Suit No. 1057 of 1982 against respoudent No. 1 for Resitutipn of Conjugal Rights A counter suit for Dis solution of Marriage being Family Suit No. 1741 of 1982 was filed by respondent No. 1 against the petitioner in the same court. Both the suits were consolidated on the application dated 29-11-1982 moved by respondent No. 1. The evidence of respondent No. 1 was recorded on 27-lv>-83 by the trial court and the matter was adjourned for further evi dence to be produced by respondent No. 1. Oh 17-4-84 respondent No. 1 brought her witnesses for evidence whose production was objected to by the petitioner through an application under section 7 (2) of the Family Courts Act, as the List of witnesses submitted by respondent No. 1 alongwitb the plaint was not in conformity with law. Objections and counterobjections were filed by respondent No. 1 and the petitioner to the said application respectively which was dismissed by the trial court by its order dated 12-9-84, whereby respondent No. 1 was directed to give full detJ.ls of the witnesses cited by her in the list of witnesses within a week. The petitioner being aggrived by that order filed an appeal in the court of Ilnd Additional District and Sessions Judge, Karachi being Family Appeal No. 147/1984 which was also dismissed by his order dated 27-9-84. The petitioner thereupon has filed this petition. 3. Mr. Rehanui Hassan Farooqui, learned counsel for the petitioner nas raised two-fold contentions : firstly, that the order dated 27-9-84 pass ed by the learned Additional District and Sessfons Judge, Karachi holding the appeal against an interlocutory order as not maintainable under section 14 of the Family Courts Act, s wrong and illegal and secondly, that the orders dated 12-9-84 and 27-9-84 passed by the two courts below allowing time for filing the summary of the evidence aad full particulars of the witnesses to be produced in the interest oT justice, is without jurisdiction. 4. Dealing first with the second contention, Mr. Rehanul Hassan Farooqui relying on section 7 (I) of the Family Courts Act, submitted that the names and addresses of the witnesses and a brief summary of the facts to which they would depose are required by law to be submitted alongwith the plaint. As the List of itnesses did not contain their, addresses and a brief summary of the facts to which they would depose, the time granted by the Faoiily Court was without jurisdiction. As. regards proviso to the said section 7 he submitted tnat the proviso orfly empowers the Family Court to permit additional evidence only. He/further submitted that the expression "in the interest of justice" has been mis-used by the two courts as the law does not give such power to^the Family Court to allow the time to fill up the gap. 5. Section 7 of the Family Courts Act requires that the plaint shall con ain all material facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose. It was alleged in tne reply to the application under section 7 (2) that respondent No. 1 due to bonafide omission and oversight, could not mention the gist of evidence of wit nesses and the petitioner did not also point out this fact at the time when the list of witnesses was submitted alongwith the plaint. It was further alleged in the said reply (Objections to application under section 7 (2) of the Family Courts Act, 1964 filed by the petitioner) that the petitioner malaftde raised the said objection when the witnesses of respondent No. I entered the Witness Box, for which reason they had to return without being examined. The conduct of respondent No. I remaining silent for a considerable time amounted to waiver on the part of the pititioner and such objections which are merely technical cannot be sustained in the interest of justice. 6. It will, be pertinent to quote below the proviso to section 7 of the Family Courts Act, 1964 : "Section 7 Institution of Suits (1) (2) The plaint shall contain all material facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the wit nesses and a brief summary of the facts to which they would depose : , Provided that the parties may, with the permission of the Court, call any witness and produce any document at any later stage, if the Court considers such evidence expedient in the inte rests of justice." 7. The proviso empowers the court to call any witness and produce B ny document at any later stage, if the court considers such evidence expedient n the interest of justice. It is wrong to assume, as contended by Mr. Farooqui, that ihe Family Court under this proviso is only entitled t call oniy further witnesses i,e. other than tlie witnesses wfaoss names appear in the list of witnesses. The words "call any witness aod produce any document at any later stage" are very wide io their scope. They give ample power to call any witness, whether named in the list of witnesses or not, much less to say the power to grant time for providing necessary particulars as to the evidence which the witnesses named in the, list of witnesses would depose. Justice favours decisions on merits and does nos shut out evidence on mere technicalities. The omission, to mention the summary of evidence of the witnesses which Jbey were supposed to depose in the court was merely b mafide 2nd the Family Court was acting within its jurisdiction to grant, tirae to respondent No. 1 for giving necessary particulars of the witnesses already named in the List of Witnesses in the interest of justice, which.is within the ambit of the proviso of section 7 (2) of the Family Courts Act, 1964 and so the learned Additional District and Sessions Judge, Karachi was right in dismissing the, appeal filed by the petitioner against that order. 8. It may also be stated that the Family Courts Act is a special statute giving exclusive jurisdiction to the Family Courts for expeditious settlement and disposal of disputes-relating to marriage and family affairs and for matters connected therewith When there h jarisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly nd the fact that the decision is incorrect does not reader the decision without jurisdiction unless it is shown that the decision is patently wrong. I may say that if two interpretations of a certain provision of law are possible then the interpretation given by the Special Court or ribunal is to be resnected and given preference to another interpretation which may be possible in the opinion of the High Court in its Constitutional Jurisdic tion. It an authority is needed the same may be had from a decision of' Honourable Supreme Court reported as Muhammad Hussaio Manir sad others v. bikandar and others (PLJ 1974 SC 60). 9. As regards the first contention raised by Mr. Farooqui, there is no need for me to examine the same as the order dated 12-9-84 of the trial court has been passed in the interest of justice and within jurisdiction. The order dated 27-9-84 passed by the Appellate Court on merits of the case does not call for any interference, 10. Furthermore, 1 am not io favour of exercising the constitutional jurisdiction to set aside an order passed in fragmentation of proceedings. As no final decree has been passed or decision givers in the suits, which are pending, it furnishes another ground for refusing tbs relief exercising dis cretionary jurisdiction under Art, 9 of Provisional Constitution Order read with Art, 199 of the Constitution, 1973 11. For the reasons discuised above, I find no force ia ibis petition which is hereby dismissed in limine. CMA No. 452 of 1984 for stay of pro ceeding in the Family Court is also dismissed. (TQM) Petition dismissed.
PLJ 1985 Karachi 26 PLJ 1985 Karachi 26 Present: tanzhur rahman, J Afar. SEEMA ASHFAQPetitioner versus \'lth ADDITIONAL DISTRICT JUDGE, Karachi and 2 OthersRespondents Const. Petition No. 679 of \9"!6 t decided on 31-10-1984, Constitution of Pakistan , 1973 Art, 199 read with Family Courts Act (W. P. Act XXXV of 1964) Ss. 5, }>2 & 14 Writ jurisdiction Exercise of Controversial question of factDecision onHeld : High Court in exercise of its constitutional iurisdiction not to act as Court of Appeal to take upon itself duty to decide controversial question of fact. [P. 30]A (li) Constitution of Pakistan , 1973
Art. 199 read with Family Courts Act (W. P. Act XXXV of. i%4) -Ss. 5, 12 & 14Court of exclusive jurisdictionDecision of Interference withWrit jurisdiction Exercise ofHeld : Constitu tional provisions as contained in Art. 199 of Constitution not to empower High Court to interfere with decision of court or tribunal of exclusive jurisdiction merely because of such decision boing wrong in its opinion oa point of fact of law. [P. 3U]C (iil) Jurisdiction Court having jurisdiction Erroneous decision by Court or tribunal having jurisdiction (in matter) determining question (rightly or wrongly)Held : Such court or tribunal aot to be said to have acted illegally or with material irregularity because of its having come to erroneous decision oa question of fact or law, [P. 30j# Family Courts Act (W. P. Act XXXV of 1964)-
Ss. 5, 12, & 14-See : Constitution of Pakistan , 1973Art, 199. [P. 30]X & C Mr. Ahmtd Saced, Qureshi, Advocate for Petitioner Sheikh Aijaz Ahmad, Advocate for Respondent No. 3, Date of hearing : 25- 10-1S84. judgment By this petition filed under Article 199 of the Constitution of Pakistan, 1973 the petitioner seeks the quashment of tae judgment and decree dated 1S7-I976 passed by respondent No. I, the Vkh Additional District Judge, Karachi ia Family Appeal No. 94 of 1976, declaring the same to be of no legel effect and restoration of the judgment and decree dated 8-3-1976 passed by respondent No. 2, the XVlil Civil Judge andJFamily Court Karachi m Family Suit No. 59 of 1975. 2. The facts giving rise to this petition are that at Karachi oo 12- lu-1974 the petitioner was married with respondent No. 3 ia lieu of prompt dower of Rs. 25,000 payable on demand. After few weeks respond»nt No. 3 started beating, assaulting and insulting the petitioner. The differences, however, were patched up though some well wishers of the family. Again, after some months the trouble started between the peti tioner and respondent.No. 3, with the result that the petitioner was driven out of the house. 3. On 27-3-1975 the petitioner filed a Family Suit being F. S, No. 591 of 1975 in Court of V11I Civil Judge and Family Court for Dissolution of Marriage, Maintenance and Recovery rf Prompt Dower of Rs. 25,000 which was, however, transferred to XXVlll Court of Civil Judge and Family Court. Respondent No. 3 filed nis written statement in which he made counter allegations against the petitioner. He stated "on the con trary the plaintiff under influence and instigation of her parents made the life of the Defendant miserable, caused mental tortures and ruined repu tation, kept him out of job, whereby the Defendant became indebted to his friends, rendering him nearly to starve". With regard to claim for dower he stated that he had promplty paid the dower ot Rs. 23,000 to the petitioner by cheque dated 22-10-1974 drawn on Habib Bank Limited, Azizabad Branch, Karachi which was encashed by .the petitioner on 9-11-1974. 4. After the filing of the suit respondent"No. 3 divorced the peti tioner on 28-3-1975. The divorce was confirmed on 26-7-1973. In view of this development which took place during the pendency of the suit, the petitioner on 3-3-1976, before her evidence was recorded, filed an appli cation before respondent No. 2 (XVIII Civil Judge and Family Court, Karachi) stating that in view of the divorce having been confirmed, she abandons her claim for maintenance and the only issue in respect of dower amount remains to be decided by the court. Accordingly, the suit pro ceeded only in respect of the claim for dower Petitioner and respondent No. 3 examined themselves. Respondent No. 3 also examined one witness, the manager of the bank The learned Family Judge d;creed the suit in the sum of Rs. 25,000 toward" dower by his judgment dated 8-3-1976 against which an appeal was filed in the Court of Respondent No. 1 who reversed the finding of respondent No. 2 and set aside the judgment and decree by his judgment dated 15-7-1976. The petitioner has now challenged it in this Constitutional petition. 5. I have heard Mr. Ahmed Said Qureshi, learned counsel for the petitioner and Mr. Shaikh Aijaz Ahmad, learned counsel for respondent No. 3. 6. Mr. Qureshi contended that the learned Additional District Judge has misread the evidence and has failed to consider the other material evi« dcnce In support of the contention that this court in its constitutional jurisdiction can upset the finding of fact, he relied on the ca^es reported as (1) Madan Gopal and 4 others v. Mwan Bepari and 3 others (PLD 1969 SC 61V), (2) Miss Nasreen Fatima A.wan v. Principal, Bolan Medical Col lege, Quetta and 4 others (PLJ i978 Qaetta 72) and (3) Muhammad Yaby« v. Misbah-al-H»q and others (1982 S, C. M. R. 269), 7. In the first case ( PLD Court observed as follows : "The legal position does not admit of any doubt that a concur rent finding of fact reached by the lower Courts will not be di«- is of no avail. In this respect, he referred to the Police Report lodged by respondent No. 3 on 17-11-1975. I am afraid, merely the omission to con sider this piece of evidence will not render the judgment as without juris diction simply because the said report lodged by respondent No. 3 with the police against the petitioner does not make a mention of the payment of dower amount. In any case that report was nor. exhibited in evidence. iThe High Court in exercise of its constitutional jurisdiction is not supposed XJto act as a Court of Appeal and take upon itself the duty to decide con- , ftrpversial question of fact under writ jurisdiction. Moreover, I find no misreading of evidence on the question of decree by the learned Addi tional District Judge. 13. Mr Shaikh Aijaz Ahmad, learned counsel for respondent No. 3 in support of his contention that this court in its constitutional jurisdiction will not interfere the finding of fact, placed his reliance on the cases re ported as (1) Leerooo v. Mst. Kazbano and 2 others (PLt> 1982 Karachi 449), (I) Aurangieb r. Ejazul Hassan Khan and another (PLD 1984 Peshawar 49). In the first case (PLD 1982 Karachi 449) it has beea held that the High Court does not act as a court of facts and cannot take upon itself the duties of Family Court.35. In the second cass (PLD 1984 Peshawar 49) reliance was placed on the following observations of the Honourable Supreme Coun in the case reported as Faqir Muhammad and others v. Muhamraad Ismail and others (PLD 1983 SC 45!) : "The question of jurisdictions of the High Court under Article 199, has come under consideration in a number of cases of this Court and it has been rap.atedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not at which the High Court would have arrived, does not render the decision without jurisdiction." 16. It is well settled that where a eourfor a tribunal has jurisdiction and it determines that question, it cannot ba said'that it acted illegally or with material rregularity merely because it'came to an erroneous decision on a question of fact or even of law. It would, therefore, be wholly wrong to consider that the constitutional provision as contained in Article 199 of the Constitution of Pakistan. 19/3 empowers the High Court to interfere with the decision of a court or a tribunal ot exclusive jurisdiction merely because in its opinion th; decision is wrong on a point of fact or of law. In that case, it would make the High- Court 's urisdiction as that of a Court of Ilnd Appeal which would be against the underlying principles of the provisions of Article 199 of the Constitution. 17. For the reasons discussed above 1 find uo force iu this petition which is hereby dismissed but in the circumstances of th; case, there will be no order as to costs. (TQM) Petition dismissed.
PLJ 1985 Karachi 31 PLJ 1985 Karachi 31 Present : eyed alley madad shah, J SIND EMPLOYEES' SOCIAL SECURITY INSTITUTION, Karachi Appellant versus FATEHALLY CHEMICAL LIMITED, Karachi Respondent M. A. No. 33 of 1983, decided on 15-11-1983. (i) Constitution of Pakistan , 1973
Art 201 High Court -Decision of-Binding value ofPendency of appeal-Effect of Held : Judgment of High Court appealed against not to lose its binding force on subordinate courts unless setaside by Supreme CourtStay of operation of impugned judgment during pendency of appeal, heid further, to operate between parties thereto) only). [P. 33jfl PLD 1963 Lah. II ; PLJ 1974 Ci. C. (Kar.) 60 ; PLD 1980 Kar. 492 & PLJ 198S Kar. 194 ref. PLJ 1975 SC 36 & AIR !935 All. distinguished. (ii) CoBStitation of Pakistan , 1973 Art. 201 read with Employees' Social Security Ordinance (W P. Ord. X of 1965)Ss. 62 & 64-Higb Court Decisions ofBinding nature ofHeld : Decision of High Court on question of law being binding on 1st Appellate Court under Sind Employees Social Security Ordinance, same to be followed in appeal pending before it. [P. 32]A Mr. Ifiikhar Ahmad Siddiqui, Advocate for Appellant. Mr. F. W. Vellani for Respondent. judgment This is an appeal under Section 64 of the Sind Employees Social Security Ordinance, 1965. It is directed against an order dated 22-2-1983 of toe learned Presiding fficer, 1st Sind Labour Court , Karachi , sitting as the appellate Court under the Siud Employees Social Security Ordinance, 165. 2. The facts in the background for the purpose of disposal of this appeal, briefly stated, are that the Sind Employees Social Security Instituttion called upon the management of the appellants to pay Social Security Contribution on the incentive bonus paid to the workers. The appellants informed the Sind Employees Social Security Institution that fhe payment of the incentive bonus did not constitute part of wages and, as such, no contribution was payable thereon. The raider was referred to the Com missioner, Sind Employees Social Security Institution, Karachi , who, by his order dated 2-11-1982, held that the incentive , bonus paid to the workers does carry benefit of Social Security contribution. This order has been called in question in appeal before the Sind Employees Social Security Court No. 1, Karachi . The learned Presiding Officer of the Court, by his order dated ^2-2-1985, has stayed the proceeding sine die on the ground that the order of Commissioner, Sind Employees SociaS Security Institu tion, impugned in the appeal, is based on the judgment of the High Court of Sind in M. As.. No. 94, 95' and 102/79 io the cases of SESSI v. M/s Brooke Sood (Pakistan) Ltd. ; & M/s Upton (Pakistan) Ltd., and Berger Paints (Pakistan) Ltd., which has been appealed against before the Supreme Court and its operation has been stayed. The order has been appealed against by the Sind Employees Social Security Institution. 3. The learned counsel appearing for the appellant institution has urged that pendency of the appeal in the Supreme Court or even the order of the Supreme ourt staying the operation of the judgment of the High Court does not warrant stay of proceedings of identical nature pending at the lower forum. He has placed reliance on PLD 1953 Lah. 11 ; PLJ 1974 Cr. C Kar. 60 ; PLD i960 Kar. 492. . 4. On the other hand, the learned advocate for the respondent has contended that the impugned order is not the decision of the case and it is not appealable under Section 64 of the Sind Employees Social Security Ordinance, 1965. He has made reference to A. I R. 1935 All. 476 and PLJ 1975 SC 36. He has further contended that the impugned order does ot suffer from any illegality. 5. It is not disputed that the legal question involved in 'he aprtea! before the Sind Employees Social Security Appellate Court, viz connota tion of the term "production/incentive bonus 1 ' was considered by the High Court of Sind in Misc. Applications No. 94 '1979 SESSI v. M/s. Brooke Bond (Pakistan) Ltd.,.95/79 M/s. iptom (Pakistan) Ltd , and No. 102/79 Berger Feints (Pakistan) Ltd., and it was held that the production/incen tive bonus does not fall within the meaning of "wages" as defined in the Sind Employees Social Security Ordinance, 1965, and no contribution is payable to the Social Security Institution thereon. It is also not disputed that the decision of the High Court in these appeals has been appealed against before the Supreme Court and its operation has been stayed. In thesecircumstances, the only question for determination in this appeal is "whether filing of the appeal in the Supreme Court and the operation of the impugned judgment of the High Court having been stayed are valid grounds for adjourning sine die the hearing of the appeal before the Sind Employees Social Security Appellate Court." 6. Under Article 20i of the Constitution, decisions of the High Court ion the question of law are binding on the subordinate Courts. As such, the Idecision of the High Court in the aforesaid Misc. Applications is binding Jon the 1st Appellate Court under the Sina Employees, Social Security Ordijnance, 1965 and it has to be followed io the appeal pending before it. The teamed counsel for the appellant has urged that the Supreme Court has admitted the appeal against the decision of the gh Court and stayed its operation and it does not. therefore, bind the subordinate courts to follow it. The learned counsel for the respondent has disagreed with that pro position ; and has furthir argued that evea if it may be assumed with >ut conceding that by virtue of stay of the operation of that judgment, the subordinate Courts are not bound to follow the judgraint of the High Court, there is another judgment on the same question of law in Misc. Application No, 7/82, the operation of which has not been stayed and the subordinate courts are bound to follow it. Such question was considered in number of casts, some of which are mentioned below, and concensus of the opinion is that mere filing of appeal does not make the impugned judgrnent/order ineffective. between the parties thereto. As such, the learned Presiding Judge, Appel late Court under the Sind Employees Social Security Ordinance, 1965, cannot hold a view different from that held by the High Court of Sind in Misc. 'Appeals No. 94/79, 95/79 & 102/79 referred to above. In that case, the aggrieved party can challenge the decision in appeal and there is bound to be multiplicity of proceedings. !n the circumstances, adjournment of appeal sine die to await verdict of the Supreme Court on the question of law is the appropriate order. 11. As regards the maintainability of appeal, it has been filed uader section M of the Sind Employees Social Security Ordinance, 1965, which lays down that no appeal shall iie from an order of Social Security Court unless it involves a substantial question of iaw. In this appeal, the ques tion involved is"Whether admission of appeal in Supreme Court against the judgment of High Court on the question of law involved in the appeal before the 1st Appellate Social Security court and stay of peration of the judgment of the High Court warrant adjournment of the proceedings sine die to await the decision of the Supreme Court" and appeal does lie for considering the question. 12. The cases referred to by the learned counsel for the respondent ilz. Simath v. Mats Prasad & Others (A. I. R. 1935 All. 476) and Sind Employees Social Security Institution & Another v. Adamjee Cotton Mills Ltd.. (PLJ S975 SC 36) are not to the point under consideration. In the Indian High Court case, a question of adjournment under the provi sions of Order Xvll C. P. C. was considered. '10 the case reported in PLJ 1975 SC 36 the question of stay order in an appea! under Section 59 of the Social Security Ordinance was considered. 13. For the aforesaid reasons, the impugned order does not suffer from any legal infirmity and does not call for interference. Appeal is dismissed with no order as to costs. Appeal dismissed.
PLJ 1985 Karachi 34 [DB] PLJ 1985 Karachi 34 [DB] Present: nasir aslam zahid & syed haider ali pirzada, JJ ABDUL RAZZAKPetitioner versus DEPUTY SUPERINTENDENT (Prev.), Centra! Excise & Land Customs, Karachi and two OthersRespondents Const. Petition No. D-3 of 1982 (also C. P. No. D-36! of 1982) decided on 12-9-1983. (0 Sales Tax Act (III of 1951) -S. 7Federal Government Notification by Effect of No provision of Act empowering Federal Government to issue aerifica tion wjtn retrospective effectHeld : Notification amending another notification with retrospective effect not to be given effect retros pectively. [P.36]A&C (ii) Notification -
Retrospective effect ofHad : Authority conferred power of issu ing notification in nature of delegated legislation not to be compe tent to give retrospective effect o such notification. [P. 3&]8 Mr. Iqbal Naeem Pasha, Advocate for Appellant (in C.P. No. D.-3/ 1982). Kanwar Mukhtar Ahmad, Advocate for Appellant (in C.P. No. D-361/ 1982). Mr. S. Inayat AH, State Counsel for Respondents. Date of hearing : 5-9-1983. JUDGMENT Ntsir Asltm Zahid, J.This judgment will dispose of Constitutionai Petition No. D-3/82 and D-361;82, as the points involved in both these Petitions filed against the Central Excise & Land Customs Authorities are the same. These Petitions involve the consideration of two notifications, issued by the Government of Pakistan, relating to levy of sales-tax oa cassettes. We have heard Mr. Iqbal Nairn Pasha, learned counsel for the Petitioners in Constitutional No. D-3/82, Mr. Kunwar Mukhtar Ahmad, learned Counsel for the Petitioner in Constitutional Petition No. D-36I/d2 and Mr. Syed Inayat Ali, who has appeared on behalf of the respondents in both the Petitions. 2. The first Notification is S. R. O. 666 (1)/81 dated 25-6-1981 issued under Section 7 of the Sales-Tax Act, H51. By the saicl Notification dated 25-6-1981, the Federal Government exempted certain goods produced or manufactured in Pakistan including the following . "S,No. Description of goods 76 Cassettes for sound-recorder! and recording recita tion from the Holy Quran falling under heading No. 92.11." According to the Petitioners, by virtue of the above-mentioned Notification dated 25-6-1981, all cassettes for sound-recorders produced or manufactured in Pakistan were exempted from sales.tax. The interpreta tion of the department on the other hand is that only such cassettes which had recordings of recitation from the Holy Quran were exempted from sales-tax and all other cassettes were subject to sales-tax. 3. During November and December, 1981, the staff of the Central Excise and Land Customs Authorities seized a large number of assembled and non-assembled cassettes belonging to the petitioners inter-alia on the ground that the Petitioners were required to pay sales-tax oasuch cassettes. Cons titutional Petition No. - /82 was filed in thi» Court on 29-12 I9S1 and it was admitted to regular hearing by order dated 20-1-1982, After the admission of Constitutional Petition No. D-3/82, Notification S. R. Q. 103 (l)/82 dated 2-2-1982 was issued by the Government of Pakistan purporting to exercise powers conferred by Section 1 of the Sales-Tax Act, 1951. According to this second Notification, amendments were made in the earlier notification and it was provided that the amendments "shall be deemed to always have been so made." The reievaat amendment that was made by the second notification was that for serial No. 7d or in entry relating thereto in column 2, the following was substituted : "Sound-.recorded cassettes of relation from Holv Quran within the beading 92.12." 4. it may be observed that the second notification dated 2.2-1982 makes it abundantly clear that the exemption from the .sales-tax was reitrictej to sound-recorded cassettes of recitation from Holy Quran only and other sound-recorded casrettes which did not have the recording of recitation from Holy Quran were not exempted from sales-tax. B The Notification dated 2-2-1982 as observed earlier, provides that the amendment in the Notification dated 25-6-1981 shall be with retrospective effect. If in law retrospective effect can be given to a notification by the notification itself, as has purported to be done by the Notification dated 2-2-J9&2. Petitioners will have do case, as then all sound-recorded cassettes, except those which had the recording of recitation from the Holy Quran, will be subject to sales-tax even prior to 2-2 1982 and at the time cassettes of the Petitioners were seized by the Centra! Excise & Laud Customs Authorities. No provisioo of the Shies Tax Act confers any power upon the Federal Government to issue a notification with retrospective, effect, The law is clear on the point that an authority, which has been conferred the power of issuing notifications in the nature of delegated legislation, is not competent to give retrospective effect to such notifica tions. We may, therefore, observe that the Notification dated 2-2-1982 cannot be given retrospective effect although the said notification provides so.. 6. The fate of these Petitions is, therefore, 10 be decided on the basis of the first Notification dated 25-6-1981. According to Mr. Iqbal Nairn Pasha and Mr. Kuawar Mukhtar Ahmad, the relevant entry in the Notification dated 25-6-1981 accords exemption from the saies-tax to two categories of cassettes. One category of cassettes, according to the learned counsel for the Petitioners, is cassettes for sound,recorders, and the other category of cassettes is those cassettes, whether audio-visual or sound, which have recordings of recitation from the Holy Quran. On the other hand, Mr. Syed Inayat Ali, learned counsel appearing for the Department, contended that the only cassettes, which was exempted from sales-tax under the Notification dated 25-6-1981,'are those cassettes for sound-recorders, which had recordings of recitation from the Holy Quran.- 6. If the interpretation sought to be placed upon the relevant entry in the first Notification dated 25-5-1981 y he learned counsel for the Petitioners is to be accepted, the relevant entry will cover two categories. According to the learned counsel for the Petitioners, the first ategory is "cassettes for sound-recorders" and second category is "cassettes, audio visual or sound-recording recitations-from Holy Quran"'. The contention of the earned counsel for the Petitioners was that these two categories are spelt out from the language employee in the Notification dated 25-6-1981, According to the earned counsel for the Petitioners, the word "cassettes" in the relevant entry of the first notification includes reference to audio visual cassettes that is the audio-visual assetes used in video-players or recorders, and therefore, it was contended tb«t the first part of the relevant entry ic the first notification related to cassettes for ouad-reeorders and the second part of the relevant entry retaled to all types of cassettes, whether sound or audio-visual, which had recordings of recitations from the Holy Quran The argument on its face appeared to, be attractive but we have not been able to accept the same If the intention was to exempt from sales- ax all types of cassettes for sound recorders, there was no need to provide for sound-cassettes with recording of recitations from the Holy Quran, as cassettes for ound-recorders would include all types of cassettes for sound-recorders including sound cassejtes with recording of recitations rom the Holy Quran. Therefore, if the ntention was that a!! types of cassettes for sound-recorders were exempted and also audio-visual cassettes recording recitations from Holy Qurao, the relevant entry ould have read as follows ''Cassettes for sound-recorders and audio-visual cassettes recording recitation from Holy Quran." In our view, in the relevant entry the reference to cassettes is only to cassettes for sound-recorders and the word "cassettes" used in the said entry does not include audio-visual cassettes. We are further of the view that the intention by the Notification dated 22-6-1981 was that only cassettes for sound-recorders which had the recording of recitations from Holy Quran were to be exempted. The relevant entry no doubt has twen unhappily worded, nonetheless, the intention was to exempt only soundcassettes which had the recording of recitations from HJiy Qaran. la our view, the word "and" in the relevant entry is rcdunoant and is to be ignored. We read the relevant entry as follows :~ "The cassettes for sound-recording recitations from Holy Quran falling under heading No. 92,11" 7. As we have come to the conclusion that the relevant entry ia the Notification dated >5-6-198l exempted from sales-tax only those soundcassettes which had the recording of recitations from tbe H»ly Qjraa. these Petitions fail. Constitutional Petitions No. D-3/82 and D-361/82 are dismissed but there will be no order as to costs. (MIQ) Petitions dismissed.
PLJ 1985 Karachi 37 PLJ 1985 Karachi 37 Present : nasir aslam zahid, J MUSTAFA HUSSAINS1DD1QU1Appellant versus Malik ISLAM AKBARRespondent Second Appeal Ne. 250 of 1980, decided on 12-12-1983. (i) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959) = S. J3EvictionAgreement of tenancy Reliance uponAgree ment of tenancy executed on four rupees stamp paper and not even registeredHeld : Such agreement at best to be treated as agreement of lease for period of less than one yearPeriod of one year in case already expiring-Held : Agreement having ceased to be in opera tion, no reliance to be placed upon same. [P, 39]A (ii) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959) S. 13 (2) (1)EvictionDefaultGround ofEviction sought on ground of default of four montbs in payment of rent by tenant- Amount of two months' rent already paid as advance not adjusted towards rentAgreement providing for rent in advance executed on four rupees stamp paper also no longer in operation Held : Two months' rent being not due at time of riling application, discretion to be exercised in favour of tenant. [Pp. 39 & 40]B & C Mi. Abdul Majeed Khan, Advocate for Appellant, Mr. Sher Afgan, Advocate for Respondent, Date of hearing : 12-12-1983. judgment The appellant is a tenant in respect of a shop located in Nursery, Commercial Area, PECH Society, Karachi . Ejec ment Application No. 1601 of 1976 was filed by he respondent/landlord for the ejectment of the tenant from the shop in question on the ground of default in the payment of rent from January, 1976 to April, 1976. A ritten statement was filed A resisting the ejectment application with the specific averment by the appellant that at the time of inducting the appellant as a tenant, the fi I respondent had taken advance rent for two months with a promise that he . would adjust the said amount in future rent but that amount was still lying with the respondent and adjustment was not granted oy him. It was further submitted that rent in fact had been paid for the period in question but receipt had not been issued. The parties examined themselves in evidence. No othsr witness was examined by either party. By order o dated 12-2-1978, the ejectment application was dismissed by the Rent p Controller. An Appeal No. !79 of 197s was filed by the respondent
which was allowed by Vill Additional District Judge, Karachi by order c dated 13-5-1980. The" order of the First Appellate Authority has been ci challenged in this Second Appeal filed by the tenant. I have heard c; Mr. Abdul Mijesd Khan, learnei counsel for the appellant and Mr. Sher w Afgan, learned counsel for the respondent. 2. Exhibit 2 is an agreement of tenancy dated 1st December, 1973, between the parties. Period of the lease is not mentioned in the agreement. Admittedly ate of rent is Rs. 425, per month. According to the lease the tenancy commenced from 1-12-1973 and this is also the evidence of boththe parties. It is therefoie aken as an admitted position that the tenancy had commenced on 1-121973. Exhibit 7 is a receipt dated 27-11-1973 signed by the respondent acknowledging a sum of Rs. 1275'as rent for three months that is October, November and D; -ember, 197, from the appellant in respect of shop in question. s bserved earlier, the tenancy had commenced from I-12-197J but this rent receipt (Ex 7} show that a sura of Rs 1275/ as rent for October, November nd ecember, 1973, had been received by the respondent. Other receipts have been produced which show that rent was received for later months that is from anuary. 1974 On a question from the Court Mr. Sber Afgan, learned counsel for the respondent stated that a sura of Rs. 850,' collected as rent for the onths of October, and November, 1973, was lying v^th the respondent and the same had not been adjusted against the rent. The factual clause (4) of the agreement, discretion would have been exercised io favour of the appellant, 5. The learned First Appellate Authority has not considered the question of adjustment of rent paid vide exhibit 7 and has not als consi dered that the agreement of lease had expired and was not applicable and in any case has not considered para 4 of the agreement dated 1-12-1973. In my view the order by the First Appellate Authority cannot be sustained As a result Second Appeal No, 250/80 is allowed, /the order dated 13-5-1980 in Appeal No 179/78 of the learned VIII Additional District Judge, Karachi is set aside and the order dat^d 12-2-1978 of the learned Rent Controller dismissing the ejectment application is maintained. There will be no order as to costs. (TQM) Appeal allowed.
PLJ 1985 Karachi 40 [DB] PLJ 1985 Karachi 40 [DB] Present : ajmal mian & sved haider An, JJ NATIONAL BANK OF PAKISTAN , I.I, Chundrigar Building , Karachi Petitioner versus . Qazi KHAN MUHAMMAD and two OthersRespondents Const. Petition No. 421 of 1977, decided on 13-10-1983. (i) Constitution of Pakistan , 1973 Art. 199 read with Industrial Relations Ordinance (XX11I of 1969) Ss. 25-A, 36 & 38LimitationQuestion of Finding onInter ference withBoth courts of competent jurisdiction finding appli cation having been filed within limitation Held : Question of limitation being mixed question of fact and law, such finding not to be said to be in excess of (jurisdiction) or suffering from want of jurisdictionHeld further : View finding favour with two courts even if erroneous, no interference to be made in writ jurisdiction of High Court. [P. 41]A & B (ii) Constitution of Pakistan , 1973
Art. 199 read with Industrial Relations Ordinance (XX11I of 1969)Ss. 25-A, 36 & 38Courts of competent jurisdictionCon current findings ofInterference with Labour Court as well as Labour Appellate Tribunal competently adjudicating upon ques tion of entitlement of incrementConcurrent finding of two courts also in accordance with evidence on record Held : View found favour with two courts not to be illegal or contrary to rules. [P. 45]£> (iii) Industrial Relations Ordinance (XXIII of 1969) Ss. 25-A, 36 & 38Labour courts - Grant of relief by-Held : Labour Court or Labour Appellate Tribunal not to grant something not guaranteed or secured under any law, award or settlement for time being in force in terms of sub-section (1) of S. 25-A of Ordinance. [P. 45]£ (Iv) Industrial Relations Ordinance (XX11I of 1969) -
-Ss. 25-A, 36 & 38PromotionClaim of Mala fides of employer Proof ofAlleged non-granting of promotion not proved to be actuated for mala fide reasonEven no particulars as to act consti tuting mala fide disclosed, in application or In evidenceHeld : Relief of promotion .not to be competently granted. [P. 46](7 (?) Promotion -Claim ofHeld : Promotion not to be claimed as matter of right except in those cases where promotion be guaranteed or secured on basis of seniority aloneEmployer, however, to have discretion to take into consideration various factors while considering question of promotion inter se different employees in cases of promotion being granted on basis of seniority-awj-fitnessHeld further : In case of supersession being motivated for mala fide reason, same to be im pugned before competent tribunal -Such tribunal itself though not to be competent to promote, promotion of persons not entitled to be competently set aside. [P. 46JF (vi) Writ Jurisdiction
AdmissionEffect ofHeld : Petitioners, being bound by their own admission, not to be allowed to urge in writ petition contrary to that urged by them before two courts below. [P. 44]C (rii) Industrial Relations Ordinance (XXIII of 1969)
S. 25-A, 36 & 38See : Constitution of Pakistan , 1973Art. 199. [Pp. 43 & 45]X- B, & D Mr. M. Mansoorul Arfin, Advocate for Petitioner. Mr. M. Salcem Akhtar Shamsi, Advocate for Respondents. Date of bearing : 13-10-1983. judgment Ajmal Mian, J.The Petitioner through this Petition has impugned the order dated 21-1-19"? and dated 28-6-1977 passed by respondent No. 2 i.e.. the Presiding Officer, Labour Court No. VI, Hyderabad and respon dent No. 3 /. e. the Chairman, Sind Labour Appellate Tribunal, at Karachi respectively in application No. 256/76 and Appeal No. Hyd-82 of 1977 respectively. The relevant facts leading to the filing of the above petition are that deceased Kazi Khan Muhammad son of Muhammad Sharif was a permanent employee of the Petitioner/Bank and at the relevant time was working as Sub Accountant with effect from 4-1-1974. It was the grievance of the deceased that he was granted increment of Rs. 30 per month on 1-7-1974 but subsequently it was withheld. It was also alleged by him that he had been deprived of his increment which became due on 1-7-1974, 2-11-1974 and 1-7-1975 in violation of the service rules and so also the promotion- Deceased Kazi Khan Muhammad filed aforesaid application under section 25-A of the I. R. O. 1969 before the VI Labour Court, Hyderabad, which was resisted by the Petitioner. However, the learned Labour Court by its order dated 21-1-1977 granted the above application and oirectcd the Petitioner to release the withheld amount of increments and benefits and also to promote deceased Kazi Khau Muhammad. The Petitioner being aggrieved by the above order filed appeal No. Hyd-82/77, which was .dis missed by the learned Sind Labour Appellate iribunal by its aforesaid order dated 28 t-1977. The petitioner being aggrieved by the above two orders has filed the present Petition e:< 30-7-1V77. It seems that during the pendency of the above Petition said Kazi Khan Muhammad expired and, therefore, bis legal heirs, mother, widow, son and daughter i.e. respondents 1 (a) to I (dj were brought on record. 2, (a) In support of the above Petition Mr. Mansooru! Arfin, learnedcounsel for the Petitioner has contended as follows : (i) That deceased Kazi Khan Muhammad's application was time bar red and, therefore, should have been dismissed by the learned Labour Court and y the learned Sind Labour Appellate Tribunal. (ii} That since the increment claimed by deceased Khan Muhammad was not guaranteed or secured to him by or under any law or any award or-settlement, both the courts erred in allowing the increment. (Hi) That there was no right of promotion guaranteed or secured to Kazi Khan Muhammad under any law or any award or settlement for the time being in force, he ould not have been granted the relief of promotion by the two courts below. (A) Oa the other band Mr. Shamsi, learned counsel for the legal heirs of deceased Qazi Khan Muhammad has contended as follows : (i) That there are concurrent findings on the questions of limitation, increment and promotion by two competent courts, this court in exercise of writ jurisdiction can not interfere with, as the same cannot be said to be in excess of jurisdiction or in violation of any provision of law. (Hi) That deceased Kazi Khan Muhammed was entitled to increment as weii as to promotion under the rules and non granting of the same by the Petitioner warranted the granting of the above relief by the two courts. 3. As regards the first contention of Mr. Mansoorul Arfin, it may be observed that he has referred to section 25 A of .the 1. R. O. Sub-section (1) of the above'Section provides that a worker may bring his. grievance in respect cf any right guaranteed or rccured to him by or under any law or any award r ettlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or colleclive-bargaining gent ithin three months of the day on which cause of such grievance arises. It may further be observed that sub-section (2) provjdes that whereas worker himself rings his grievance to the notice of an employer, the latter shall wjthm 15 days of the grievance bein^ brought to his notice, communicate his decision iu writing to he worker, whereas sub-section (3) deals with the case where a worker brings bis grievance to the notiw of the employer through his shop steward or collective bargainunder Article 98 of the late Constitution of Pakistan 1962 and a defect of limitation is not a defect of jurisdiction wherefore any erroneous view of law aken on such point or an erroneous assumption of fact upon which jurisdiction of the court concerned depends can be interferred within a writ under Article 98. In the second case Shafiur Rehman, J (as be then was) while construing Section 25-A held that authority having jurisdiction to entertain a matter has jurisdiction to decide question of limitation rightly or wrongly. Mr. Shamsi has also pointed out the difference bet ween the language employed in section 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and subsection (1) of Section 25-A. In our view, it is not necessary to go into the question of the difference in the language employed in the two enactments. It will suffice to observe that we are in respectful agreement with thi view found favour by Shafiur Rehman, J. which is directly on the interpretation of Section 2i-A. 4. As regards the second contention of Mr. Mansoorul Arfin that the increment was not a right guaranteed or secured to deceased Kazi Khan Muhammad under any law or any award of settlement for the time being .
in force, it may be observed that the learned Labour Court has placed reliance on rule 23 of the National Bank of Pakistan (Staff) Service Rules, 1973 which reads as follows : "Increment : Subject to their service being approved, the annual increment in the pay of employee SHALL accrue and BE GRAN TED on the first of January or any other date each year as may be specified by the competent authority." However, it was urged by Mr. Mansoorul Arfin that since this is not a statutory rule, it can not be urged that the right under the above rule is guaranteed or secured under any law. On the other hand Mr. Shamsi has pointed out that before the Labour Court as well as before the learned Sind Labour Appellate Tribunal the case of the Petitioner was that the above rules were statutory rules. He has invited our attention inter alia to paras. 1 and 2 of the memo, of appeal filed by ; the petitioner before the learned Sind Labour Appellate Tribunal, which read as follows : - "(1) That the appellants Organization is a statutory body having been . brought into existence by an Ordinance No XIX of 1949 and has the statutory Rules .of Service and Conduct in effect for their workmen, (2) That the respondents in appeal is a workman employed as Sub-Accountant. His terms and conditions of service are regulated by the National Bank of Pakistan (Staff Services) Rules, 1973 together with the directions contained in the Wage Commission Report, 1974-75." A perusal of the above quoted paras, clearly indicates that the Peti tioner's case before the learned Sind Labour Appellate Tribunal was that the rules in question are statutory rules. However, it was urged by Mr. Msosoorui Anin that since it is a point of law, it can be urged in a Writ iPetition notwithstanding that a contrary view was urged by the Petitioner Jbefore the two courts below. In our view, for the purpose of the present SPetition, the Petitioner are bound by their own admission. They can no Ibe allowed to urge in a Writ Petition contrary to what was urged before secure a right of promotion in favour of Petitioners' employees and, there fore, both the courts have acted in excess of jurisdiction Mr. Mansoorul Arfin has referred to the case of Abdul Wan ed v: Pakistan through the Secretary, to the Government of Pakistan, Ministry of Finance Islamabad and another reported in 19 74 PLC 120, the case of Agricultural Development Bank of Pakistan, Karachi v. Staff Union aud another reported in PLD 1975 Karachi 876 and the case of Brooke Bond India (Private) Ltd. v. Their Workmen reported in 1966 PLC 449. In the first case Karam Elahi Chohan, J, sitting as SB in the Lahore High Court while construing the question of promotion of railway employees held that promotion was always matter of discretion and not 01 right and, therefore, can not be enforced through a Writ Petition under Article 98 of the late Constitution of Pakistan, 1962. In the second case a learned Single Judge of this Court while dealing with the question of promotion in respect of staff of Agri cultural Development Bank of Pakistan, held that it is not open to the officials of the union to guide bank as to h'-?w promotion should be made and no right of promotion, claim, guaranteed or secured to particular category of officials. In the third case a Full Banch of the Indian Supreme Court held that normally the promotion of the workman is a managemant function but there may be occasions where industrial adjudication may have to interfere with promotion made by the management, where it is felt that the presons superseded have been so superseded on account of mala fide or victimisation but even aftes recording of finding malafide or victimisa tion it is not the function of the Tribunal to consider the merits of various employees itself and then to decide whom to promote or whom not to promote. It was further held that the proper course for a Tribunal is to set aside the promotion and ask the management to consider the cases of superseded employees and decide for itself whom to promote but the tribunal can not order the promotion of certain other employees over and above those promoted by the management, 6. It is by now a weil settled principle of law that a promotion can not be claimed as a muter of right except ta those cases where promotion is guaranteed or secured on the basis of seniority alone. But where the promotion is to bs granted on ths basis of seniority-cu/n-fitness, an employer has the discretion to take into consideration various fectors while considering the question of promotion inter se between different employees. If he by passes a particular employee bonafidely, his action can not be challangsd. H j^sver, if ths suparsessson is motivated for malafide reason, the same may be impugned before a competent tribunal but the tribunal cannot itself promote but may set aside the promotion of the persons, who were entitled to the promotion in supersession of an aggrieve ed person and may direct the authority concerned to reconsider ths case, (a the instant case nothing has baen brought on record to indicate that the alleged non-granting of promotion was actuated for malafide reason. No particulars as to the act constituting malafide were disclosed in the application or in the evidence. We are, herefore, of the view that both the courts could not have granted the relief of promotion, 7. For the aforesaid reasons the Petition is allowed to the extent of declaring that the granting of relief of promotion to deceased Qazi Khan Muhammad was without lawful authority and of no legal effect. 10 the ircumstances of the case there will be no order as to costs. (TQM) Petition allowed.
PLJ 1985 Karachi 47 PLJ 1985 Karachi 47 Present: abdul razak A. thahim, J JAVAID MUBARAK-Appellant versui SHAMSUDDIN and 4 OthersRespondents 1st Rent Appeal No. 825 of 1980, decided on 26-4-1984. Sind Rented Premises Ordinance (XVII of 1979) ~Ss. 15, 19 & 21Eviction-Application" forRent Controller-Pro cedure beforeHeld : Application once admitted not to be dismissed by Rent Controller without recording evidence of parties Application for eviction in case dismissed on ground of petitioner having no locus standi to pursue rent caseHeld : Mandatory provisions of S. 19 having been violated, impugned order to be set aside with direction to Rent Controller to proceed with case and to decide ,» same finally after affording parties opportunities to adduce evidence. [Pp. 47 & 48]-4 Mr. Ikram Ahmad Ansari, Advocate for Appellant. Mr. K. B. Bhutto, Advocate for Respondent No. 1. Mr. Hasan Asghar Rizvi, Advocate for Respondents No. 2 & 5- Mr. Vakil Ahmad Siddiqui, Advocate for Respondent No. 6. Dates of hearing : 9-2 & 26-4-1984. judgment This appeal under Section 21 of the Sind Rented Premises Ordinance, 1979 has been filed against the order dated 29-9-1980, passed by the XlVth Civil Judge andRent Controller No. VI, Karachi whereby he has dismiss ed the Rent Case No. 111/1976. The Rent Case has been dismissed on the ground that appellant has no locus standi to pursue the rent case. I have heard Mr. Ikram Ahmed Ansari, advocate for the appellant, Mr. Hasan Asghar Rizvi, advocate for respondent No. 2, J, Mr. K B. Bhutto, advocate for the respondent No. 1, and Mr Vakil Ahmed Siddiqui, advocate for respondent No. 6, at lenght. The learned Rent "Controller has admitted the rent application and evidence of Mr. Shaikh Mubarak Ali was recorded on the side of the applicant and written sta'e-ment was 6!ed. The issues were framed. Respondent was not yet examin ed the parties made applications on the basis of which the learned Rent Controller dismissed the rent application as stated above. During the arguments it has been pointed out that procedure has contemplated under Section !9 of the Sind Rented Premises Ordinance, 1979 has not been adopted by the Rent Controller. Learned Advocates for the parties have agreed that this case be remanded back the Rent Controller. The Rent Controller in my view can- not dismiss the applinaions onc e he has admitted. He has no option but to receive the evidence first orj the applicant and his witnesses and then of the respondent and his wit !-nesses as envisage under Section 19 (3) of the Ordinance. He has to record"! findings on each issue separately as provided under sub-section (5) of the Section 19 of the Ordinance. This mandatory provision has been violated therefore, I set aside the impugned order of the Rent Controller and direct him to proceed with the case and give an opportunity to the parties to adduce their evidence and finally decide this case within six months on merits and according to law. Appeal allowed
PLJ 1985 Karachi 48 PLJ 1985 Karachi 48 Present: naimuddin, J DARUL ULOOM NA1EEMIA TRUST, Karachi through its Managing TrusteeAppellant versus MUNIR AHMADRespondent First Rent Appeal No. 559 of 1981, decided on 12-6-1984. (i) Sind Rented Premises Ordinance (XVII qf 1979)- :
Ss. 15 & 2 (/) TrustEviction of tenant by Personal use Ground ofTrust not excluded from definition of "landlord" Premises in case also not claimed to be excluded from operation of all or any of provisions of Ordinance Held : Provisions of Ordi nance to be construed keeping in view nature, object and needs of TrustHeld farther : Trustees to be competent to require Trust Properties either for their own residence on premises to carry out Trust more effectively 01 for use of beneficiaries or for purposes of Trust-to open office of Trust or to carry out object of satne. [P. 50]^ & S (II) Sind Rented Premises Ordrnnnce (XVII of 1979)
S. 15TrustEviction of tenant byPersonal useGround of Trust requiring premises for running Dini Madaresa to impart religious education to children of areas and to give Dars-e Quran to adult residents of areaPremises admittedly donated to Trust for using same for charitable purposesHeld : To run Dini Madaresa to impart religious education to children of areas and to give Dars-e-Quran to adult residents of areas without charging any fee being charitable purposes, tenant to be directed to vacate premises and to put appellant into possession thereof. [Pp. 50 & 51]C & F (iii) Sind Rented Premises Ordinance (XVII of 1979) S. 15EvictionApplication forDefence ofPlea not taken in written replyEffect ofPlea raised in appeal not taken by tenant in written reply filed by himHeld : In absence of such plea in written reply, no amount of evidence (on plea) to be looked into. [Pp. 50 &:>!]£ (iv) Jndicitl Nolice
-Religious educationCharging of fee forFor imparting religious education in our country, no fee charged from student Judicial notice taken of fact ofEvidence Act (I of 1872)-Ss. 56 & 57. [P. 50]Z> (t) Evidence Act (I of 1872)
Ss. 56 & 57See : Judicial Notice. [P. 50]P Mr. Af. 'snail Ka?ffrx, Advocate for Appsllsst. Mr. 5. AT Afzal, Advocate for Respondent. 'Date of hearing : 30-5-1984. judgment This appeal is from the order of IX Senior Civil Judge and Controller, Karachi dated 29-8-1981, whereby he dismissed the application under Section IS of the Sind Rented Premises Ordinance, 1979 filed by the appellant, for eviction of the respondent from ttee premises, being first floor of House No, 62, Block No. 1, Liaquatabad, Karachi, in the follow ing circumstances. 2. The appellant is a Trust registered undr'r the Societies Registration Act, I860. The respondent is the tenant of the premises. The premises was donated to the appellant by its owner namely, Abu Bakr Khan under a duly registered Trust Deed dated 17-9-1979 3. The appellant sought the eviction of the respondent on the grounds that the Trust intended to run a 'Madaresa in the premises to impart religious education to the children of the area since the premises in question has been donated to the Trust for using the same for charitable purposes and that the Trust also intended to start in the premises "Dars-e-Qur'an" 1 for adults of the 'Mohallah. Accordingly, he appellant claimed that it required the premises in occupation of the respondent, in good faith for its own persona! bona fide use for charitable purposes to carry out its aims and objects. 4. The respondent in his written statement denied the claim of the appellant and pleaded that the appellant wanted to change the character of he premises by converting the same to commercial use. Therefore, it was pleaded that application was not maintainable. 5. On the pleadings of the parties, the Controller framed the following issues, "!, Whether the premises are required by the applicant bona fide and in good faith ? 2. What should the order be ?" 6. In the affidavit filed by the respondent, he stated that the appellant did not require the premises for personal hona fide use as there is a big Madaresa in the locality adjoining the mosque and the children of the ' Mohallah' went there for religious an'd primary education. 7. The Controller in his order while dismissing the application stated that after considering the case of both the parties, he was of the view that although the opening of a 'Madaresa' and starting Dars e-Qur'an in the premises was a good idea, yet it could not be said that the appellant required the same for personal bana fide use. He further observed that "as for the religious affiairs are concerned, nowhere Islam has permitted to put any bona fide resident on his family or even any body in hardship, difficulties and inconvenience just to impart religious education." He also observed that "from the question put in cross-examination it is clear that there exists a ' Madaresa' and Mosque in the locality where the appellant can open religious education without any hinderance.' He therefore, concluded that the premises in dispute was not required bona fide by the appellant for the personal use. 8. Aggrieved by the order as stated in tfee beginning the appellant has filed tfaii appeal 9, I heard Mr, Ismail Kassam Advocate for the appellant and Mr. S, M. Afzal Advocate for the respondent.10- Mr. Ismail has contended that the order passed by the Controller is not in accordance with law while Mr. Afzal has contended that, the application was not maintainable as the appellant was seeking the premises for commercial purposes while admittedly it is being used for residential purposes. 11. Considering the respective contentions of the learned Counsel for the parties, it is not disputed before me that the appellant is the Jard- jord within the meaning of Section 2 (f) of the Ordinance as the Trust ; ? not excluded from the definition nor is it claimed that premises or pro perties of this class are excluded from the operation of all or any of the provisions of the Ordinance. 12. Since the Ordinance applies to Trust premises, therefore, its 'previsions are to be construed keeping in view the nature of the Trust, its objects and needs. Thus in the case of Trust properties, the trustees icould require the premises either for thair own residence on the premises to carry out the Trust more effectively or for the use of beneficiaries or for the purposes of Trust, say, to opeo the office of the Trust or to carry cut Ithe object of the Trust 13. In the present case, the Trust required the premises for «aniag a 'Dini Madaresa" 1 to impart religious education to the children of the area and to give 'Dars-e-Qur'an to adult residents of the area. It 's not disputed that the premises has been donated to the Trust for using the same for charitable purposes and to run a 'Dini Madaresa' to impart religious education to the children of the area and to give Dars-e-Qur'cn to adult residents of the area are charitable purposes, if done without barging any fee and it is no body's case that the trustees after opening a Madarssa wish to charge any fee. It is well known that in our country. jfor imparting re!igious_educatkm in 'Dini Madaresa', no fee is charged from the students. 14. The reason given by the learned Controller 'that Islam nowhere permits to cause any bona fide resident or his family or any hardship, difficulties and inconvenience just to impart religious education, is not proper for it is not a question of causing any bona fide resident or his amily any hardship, difficulties d inconvenience but to advance the objects of the Trust, whicn being charitable are bound to benefit a large number of people. Thus their benefit should weigh more than the mere hardship, difficulties or inconvenience to a tenant of the Trust property or his family. The objects of the Trust should not be allowed to fall as far as possible. Further, if the reason advanced by the learned Controller for refusing eviction is accepted then no tenant could ever be evicted from the rented premises by a Trust on that ground. 15. The Controller has also relied on the statement made in the cross-examination that there exist 'Madaresa' and Mosque in the locality where the applicant could open religious institution without anyJhinderance. It would be sufficient to say that no such pleas was taken by ( the respondent in the written reply filed by him and it cannot be said that what it the capacity of that Mosque or 'Madaresa' and whether that issufficient to accommodate ail the chiidren in the areas wishing to get! religious education, and therefore, no reliance could be placed therec Further, in the absence of such piea in the written reply no amount of! evidence could be looked into. 16. Taking up the contention that the application was not maintain able as the appellant wanted to convert the residential premises into non-residential premises, it may be stated that a distinction was made between a residential and non-residential building in the defini tion clauses (d) & (g) of Section 2 of the Sind Urban Rent Restriction Ordinance, 1959 or in Section 3 (a) (i) and Section 3 (a) (ii) of the said Ordinance but such distinction has been done away with under the Sind Rented Premises Ordinance, 1979, because in the new Ordinance no pro visions similar to those contained in Sections 2 (d), 2 (g), or 13 (3) (a) (i) and (ii) have been made. Mr. Afzal cited (1) Jssiii v. Mst. Suitan& Jelwo Begum (PLI 1974 Kar- 339), {2} Subs v, Sirgj Din (PLD 1971 Lafa, 1263), and (3) Qarb&B Kha& v. Begun; M. M. Sharif and Another (1980 S. C. M. R, 590). But iheie cases are on Section 13 of the Siad Urban Rent Restriction Ordinance, 1959 and lor the afores-sid reason are distinguishable, 17. I therefore, allow the appeal. However in the circumstances oft the ease I grant the respondent more than normal time of oae year tolf vacate the premises and put the appellant into possession thereof.The parties shai! however, bear their own costs in the circumstances of the case (TQM) Appeal allowed ,
PLJ 1985 Karachi 51 PLJ 1985 Karachi 51 Present : saeeduzzaman siodiqui, J ABDULALI P. ,J!VANIDecree-holder versus PAKISTAN and 2 OthersJudgment-debtors Execution Application No, 29 of 1982, decided on 21-5-1984. (i) Civil Procedure Code (V of 1908)
O. XXI, R. 1Money decree-Execution ofPayment of money in Court Effect of Decree providing payment of interest on decretal amountJudgment-debtor making payment in accordance with provisions of sub-rule (1) of R. 1 of O. XXI, CPCNotice of such deposit also given to decree-holder-Held : Interest oa decretal amount not to be payable after date of such notice to judgmentdebtor. [P. Si]A & B (II) Civil Procedsire Code (V of 1908)-- _p. XXI, R. i-Money decreeExecution of MoneyPayment of ia courtEffect ofJudgment-debtor making deposit of decretal amount as security for tay of execution and not for payment to decree-holderEven no notice of such deposit ever given to other party Held : Deposit siade by judgment-debtor being no deposit within meaning of O XXI, R. 1, CPC, interest oa decretal amouat not to cease to run frosa dute of aukiflg of u^.it in couic He?d foriber : fukiiwSi as d«vre£&i amount to e<-u,»c io run from di.ie of deposit only wlica judgiii<sai-dcbtor mskti uucoiiduioual deposit of decretal amount in court for payment to decree-holder and court also notifies of such deposit to ciher party. [P. 53]C AIR 1919 Mad. 445 ' &. AIR 1950 Mad. 807 ref\ Mr. J. H. Rzhmits&la, AdvoeiUe for Dcsree-boidcr. Nemo for okos JUDGMENT This application under section 151 CPC is tiled by the plaintiff D/H for issuance of execution against the defendant J/D for recovery of balance at reta! amount of Rs. 33,149.60 and future intsrest til! payment. No counter affidavit to the application has been filed and defendant J/D and tfat-ir counsel remained absent when this application was called for hearing in ihe court. The circumstances under which the present application is filed by the D/H may be stated as follows : Plaintiff D/H instituted a suit for compensation and damages amount ing to Rs, 1,50,000/-. The suit was decreed by a learned Single Judge of this co art by judgment dated 8-11-1965 in the sum of Rs, 38.000/- with interest @ 6% per -annum from the date of filing of suit til! the amount is paid. The decree in the above suit was challenged by the defendant (J. D.) Province of West Pakistan in LPA No 202/67. During the pendency of the above LPA the defendant appellant filed an application before the appellate bench for stay of the execution. Th; stay application filed by the defendant'appsllant was disposed of by thj LPA b;nch with jut notice to the D/H as follows : "Let the appellant/Judgment debtor deposit the decretal amount in Court, but the payment thereof will be considered if and when the respondents apply for it.. The application is disposed of accordingly." The LPA filed by the defendant J/D was finally dismissed by judgment dated 12-1-1981. After dismissal of the appeal the plaintiff D/H applied for execution of the decree in which he claimed interest on the principal amount upto 10-3-1981, namely, the date on which the execution applica tion was filed, amounting to Rs. 38.606/-. During the course of the execution proceedings the D/H applied for payment of the sum of Rs. 50,738.40 deposiled by the defendant J/D in LPA No. 202/67. This amount which had lapsed was recalled and paid to D/H through a Pay Order dated 15-12-1983. The learned counsel for the Plaintiff D/H con tends that since the amount deposited by the J/D in appeal was not in ac cordance with the provisions of Order 21 Rule 1 CPC and no notice of the above deposit was ever given to the plaintiff D/H, they are entitled to the interest on the above amount til! the payment was made to them. The plain tiff also claim for future interest until satisfaction of decree in full. The D/H has accordingly claimed interest on the decretal amount from the date of institution of the suit namely, 108-1961 upto 10-I2-19S3. the date of the payment of Rs, 30,378 to him and after deducliag the aaiouat received by thiiai Ls Las prayed for issuance of execution for the balaucs ouisUaditg ii on 15-12-1983 amounting to Rs, 33,149.60, The question, which, therefore, arises in these circumstances is whether the deposit made by the defendant J/D in LPA No. 202/6? amounts to paymesi of decretal amount within the meaning of Order 21 Rule I CPC. The defendant J/D and their counsel iospite of notice have failed to appear and therefore I had advantage of only hearing the learned counsel for the pisiaisff D/H in the casa. After hearing the learned counsel for the plaintiff 1 aia of ths view that the p!<dntiff D/H is entitled to interest on '.h« decretal aoiount iu the circumstances of ike case up to 15-12-1983. In accordance with the decree the ptaiaillf D/H is eatitled to the interest oa the amount decreed sa his favour until its payment to him. Order 2! Rule 1 CPC provides tfaas where payment is made in court under clause (a) of sub^rule (i) of Rule i of Order 2!, notice of such payment has Co be gives to the D/H, It is well settled law that where a decree provides payment of interest on the decretal amount and payment is made by the J/D in accordance with the provision of sub-rale (i) of Rule I of Order 21 CPC and notice of such deposit is given to D/H then the interest on the decretal amount is aot payable after the date of such notice to the D/H. After hearing the learned connsel for the D/H. I called for the file of LPA No. 202/57 in which the deposit was made by the J/D. I find that on 8-10-1969 the learned appellate bench directed deposit of the decretal amount in court by the appellant J/D and no notice of this application was given to the plaistiff D/H. There is also nothing on the file to show that even after the deposit was made, any notice of the deposit was given to the plaintiff D/H. In fact from the execution application filed by the plaintiff D/H it is quite clear that he was not aware of this deposit until he filed the application for execution in the court. It is also quite clear that the deposit made by the defendant J/D in LPA No. 202/67 was not a deposit of the decretal amount for payment to plaintiff D/H as required by Rule 1 of Order 21 CPC but it was deposited as a security for stay of the execution against them. This is clear from the contents of the application under Order 41 Rule 5 dated 20th September. 1969, filed on behalf of the appellant J/D before the learned appellate bench. It reads as under : "Application under Order 41 Rule 5 Civil Procedure Code. It is respectfully prayed that this Hon'ble court may be pleased to slay the execution by allowing the Judgment Debtor to deposit the decretal amount in Court. It is further prayed that before withdrawing the amount the decree holder may be ordered to furnish bank guarantee to the extent of decretal amount. Sd/- Abdul Hafeez Memon, Asstt. Advocate Genera! W.P., High Court Building, Karachi." n these circumstances the deposit made by the defendant J/D in court in LPA No. 202/67 could not be treated by any process of reasoning as a deposit within the meaning of Order 21 Rule ! CPC. That being the posi tion the interest on the decretal amount could not cease to run from the date of the deposit made by the defendant J/D in court. In my view it is only when the defendant J/D makes deposit of decretal amount in court unconditionally for payment to the D/H and plaintiff D/H is notified of such deposit by the court that the interest on the decretal amount shai! lo ran from the date of deposit. If any authority is aeeded for the {view reference may be made to the cases of J. Rsaaarya Sfasmbogue v. Sherbet! Venkatranamayya (AIR 1919 Madras page 445) and Mockaaaicker v. A, K. Vcnkatasami (AIR 1.950 Madras page 807). I am therefore of the view that the plaintiff D/H is entitled to interest on the decretal amount only up co S5-12-1983 when a sum of Rs. 50,730,40 which covered the decretal amount and part of interest was paid to him. I accordingly allow the application and direct the defendaat j/D ,10 deposit ilia balance of the interest, amounting to Rs 33,149.60 within two months from today failing which the execution will issue for its recovery against the defeadaat J/D la accordance with the law, (TQM) Application allowed.
PLJ If85 Karachi 54 [DB] PLJ If85 Karachi 54 [DB] fi-asni : ajmal mian & sybd haider An puuada, JJ Syed IRSHAD AHMADPetitioner versus RETURNING OFFICER/ADDITIONAL DISTRICT JUDGE, Karachi & 28 Others Respondents Coast , Petition No. D-203/1984, decided on 16-5- 19S4. (i) Constitution Order (CMLA's 1 of 1981) -Art. 9 read with Sind Local Councils (Election) Rales, 1979 Rr. 65, 67, 35 (2) & 48 (4) Election petition Pleas raised in Failure to decide]Effect ofElection Tribunal deciding election petition on basis of one out of number of pleas as to alleged illegal practices raised in petition--Decision on such plea also given with out any evidenceHeld : Case to be remanded to Election Tribunal with direction to decide matter of fresh after allowing parties oppor tunity to lead evidence on all points raised in petition, [p. 57JC (is) Presumption
-Conclusive nature "ofHeld : Presumptions provided for under any law, unless made conclusive, to be rebuttable-Rule in case not providing that presumptions provided for to be conclusive and not to be questionedHeld: Presumptions to be competently rebutted by affected parsonSiad Local Councils (Election) Rules, 1979R. 35. [P. 57J/I (Hi) Writ Jurisdiction Exercise ofTribunalDecision byInterference withTribunal deciding matter without any evidence, misreading evidence or mis applying lawHeld Superior courts to have Jurisdiction to correct such errors. [P. 57JB (I?) Siad Locsi Councils (Election) Rules, 1979) ...R. 33Sff : Presumption. [P. 57]^ (?) Sind Local Councils (Election) Rules, 1979 Rr-65, 67, 35 (2) & 48 (4)See : Provisional Constitution Order (CMLA's I of 198l)-Art, 9. {P. 5?]C Mr, Raja Qureshi, Advocate for Petitioner. Mr. Khalid Habibvllah, Advocate for Respondent No, 7. Date..of hearing : 16-5-1984 (vi) Provisional Constitution Order (CMLA's 1 of 1981) -Art. 9 Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)S. 5. [Pp. 63 & 64 ].4 &C Mr. Munawwar Ghani, Advocate for Appellant. Mr. Hydtr Raza Naqvi, Advocate for Respondent No, 2. Mr. Aziz A. Munshi, Deputy Attorney-General on Court netice, Date of hearing : 8-5-1984. judgment Naimuddin, J.~By an order dated 2<-3-1983, passed in Constitutional Petition No, D-24 of "1983, the question 'whether Mr. Ahmad Ali U, Qureshi was not holding a post of District Judge on the date when the Special Court consisting of htm was constituted under Section 5 of the Banking Companies (Recovery of Loans) Ordinance, J.979 (Ordinance XIX of 1979), (hereinafter called the Ordinance) was directed to be heard as preliminary question Since this question was involved in a number of cases all were directed to be fixed for hearing together. The Registrar, High Court of Sind, was directed to place the service record of Mr. Ahmad Ali U. Qureshi before the Bnch hearing this petition and other petitions involving the same question. By the sama ordtr the Seamed Deputy Attorney-General and the learned Advocate-Genera'., Sind were directed to appear before the Bench. 2. Ws have heard Mr. Munawwar Gham learned Counsel for the petitioners io this petition, Mr. S. Abbas Zia learned Counsel for the petitioner and Mr, G. H, Malik learned Counsel for respondent No. 2 sn Constitution Petition No. D-97 of 1983. Mr. Khalid M. Ishaque learned Counsel for the pe itioners and Mr, Mansoorul Arfin learned Counsel for respondent No. 2 io Constitution Petition No. D-183 of 1982, Mr, Usniaa Ghani Rashid learned Counsel tor the petitioner and Mr. Syed Maamoon Hasan karaed Counsel for respondent No. 5 in Constitution Petition No. D-1108 of 1981. Mr. Abdul Samad Khan teamed Counsel for the peti tioner and Mr. Iqbal Haider, learned Counsel for respondent No 2 in Constitution Petition No. D-149 of 1984, and Constitution Petition No. 20 of 1984, and Mr. Aziz A, Munsbi, learned Deputy Attorney-General on Court notice, 3. So far as the fate of Constitution Petition No. D-24 of 1983, is concerned, it solely depends on the answer which is to be given to the question which is heard as preliminary question as Mr, Munawwar Ghani has stated that there is no other point involved in this constitution petition. Therefore, this judgment will dispose of this constitution petition in its entirety. 4. So'far as Constitution Petition No. D-97 of 1983, is concerned, Mr. S. Abbas Zia stated that besides the preliminary question which we are required to answer, he has to urge one more point in support of the petition namely, that the decree impugned m this constitution petition is illegal as in the suit in which the decree was passed, the plaint filed was not signed by proper person authorised to sign the plaint. We have there fore,, heard Mr. S Abbas Zia on this point also and this judgment will also dispose of the said constitution petitioa as a whole for we propose to leal with this point too in this judgment. The other constitution petitions viil be fixed for hearing on other points as ordered in those petitions. Now, taking up the question we may first note certain facts noticed by us after going through the service record of Mr. Ahmad AH U. Qureshi with regard to various posts he held on various material dates. The first date to be noticed is 2nd August, 1972, when a corri gendum bearing No. S. O. (iv) (Establishment) 7 (33) 72, was issued which shows that Mr. Ahmed Ali U. Qureshi, Additional District & Sessions Judge, Karachi was promoted as Officiating District and Sessions Judge and posted as Judge, Small Cause Court, Karachi against the existing vacancy. By another notification No. S. (Genl-17-//8) dated 16-3-1974, Mr. Qureshi was promoted and posted as officiating District & Sessions Judge, Khairpur vice Mr. Hydcr Shah. At that time he was Judge, Small auses Court, Karachi. By another notification No. V 8)-SOJ/74, issued n exercise of powers conferred by subsection (1) of Section 9 of the Code of Criminal Procedure, 1898, the Government of Sind appoinied Mr. Qureshi as Sessions Judge, Khairpur. Thereafter, we find a communica tion bearing No. F-l(19)/72-E, dated 30-11-1974, from the Officer, Govern ment of Pakistan, Ministry of Law & Parliamentary Affairs (Law Divi sion), addressed to the Chief Secretary, Government of Sind, Karachi, informing him that Mr. Qureshi has been approved for his appointment as the Deputy Solicitor in Law Division. The Chief Secretary was requested to relieve Mr. Qureshi immediately to enable him to take up his new assignment in that Division at Karachi. This notification was follow ed by another notification bearing No. S-G-17-1/73/5149, dated 6-12-1974, whereby the Governor of Sind placed the services of Mr. Qureshi who was serving as District & Sessions Judge, Khairpur at the disposal of Govern ent of Pakistan, Law Division, for appointment as Deputy Solicitor with immediate effect. We may here quote this notification in tenso. Government of Sind Law Department "No. S. Genl-17-1/73. Governor of Sind is pleased to place the service of Mr. Ahmad Ali Qureshi, District Judge, Khairpur, at the disposal of Government of Pakistan, Law Division, for appointment as Deputy Solicitor with immediate effect. 1 ' enough to qualify him for appointment as Special Judge Mr. Khalid submitted that be (the Special Judge) at the time of his appointment should have bees actually working as District Judge,He was supported ia the arguments by the Counsel for the petitioners in other petitions. 9, In addition, it is submitted by Mr. Usman Ghani Rashid that to be qualified for such appointment Mr. Qureshi should have not only been a District Judge on the date of his appointment bat should have ccmtieued to hold that post even after bis &ppoiotnjsnt as Judge of the Spsaal Court, 10, It is argued by Mr, Samad Khan that Notification No s F. 45(i)/79 dated 4-11-1980, establishing the Special Court was cancelled/withdrawn, and therefore, Mr, Qureshs ceased to be Judge of Special Court. We may at this very stage state that we are not required to deal this submission for what is questioned before us in the aforesaid petitions is the order, or decreepassed by Mr. Qureshi. 13, Oo the other hand, Mr. A. A. Munshi, the learned Deputy Attorney-General has submitted that Mr. Qureshi not only onve actually acted as District Judge but he continued to remain in that cadre. He further submitted that in any case, his judgments, orders and decrees are saved by de facto doctrine. 12. It is submitted by Mr. Mansoorul Arfia that the word 'is' has been often been construed as 'has been and accordingly he argued that since Mr. Qureshi was promoted as -District Judge and appointed as officiating District Judge, Khairpur, he was qualified to be appointed as Judge of Special Court. 13. The other Counsel for the petitioners adopted the arguments of Mr. Khalid M. Ishaque. 14. Now, before we consider the submissions of Mr. Khalid M. tshaque, it may be convenient to quote here first the provisions of Section 5 of the Ordinance, which read as follows : "5. Establishment of Special Courts :(!) The Federal Government may by notification in the Official Gazette, establish as many Special Courts as it considsrs necessary, and where it establishes more than one Special Court, sfaai! specify in the notification the territorial limits within which each one of them shall exercise jurisdiction under this Ordinance. (2) A Special Court shall consist of a person who is a District Judge." In tupport of his submission that Mr. Qureshi should not only have been a District Judge once but should have actually held the post of District Judge on the date of establishment of the Special Court, \1r. Khalid M. Ishaqus relied on the definition of 'District Judge' given in Section 3, sub-section (15) of the General Clauses Act, 1897, which rends as follows . "District Judge" shall mean the Judge of a Principal Civil Court of original jurisdiction, but shall not include a High Court in the only necessary to interpret the word 'is' in a liberal manner and in the manner that it appears to me, the legislature must have intended. 1 think that in the circumstances the document ought to be held to be admissible and the plaintiff ought to have an opportunity to pursuing his claim." 17. Reference may also be made to Corpus Juris Seeundum Volume 48, p. 774 which states the meaning of the word 'is' as "the third person singular, present indicative of the verb "be" although the word has been used in the sense of "are", denoting the plural number. In its plain, ordinary, and usual senses, it denotes present tense, and it has been said that it is employed only in indication of that sense. However, it has also been said that, by reason of the context the meaning of the word may not be confined to the present, but it may have a future signification in the sense of "will be", or a past signification in the sense of "has be<:n'\ (underlining is ours for emphasis). For this meaning reliance is placed on the American cases of Louisvice Southern R. Co. v. Lewis, (41 S. W. 3, 4) and Stone v. Morgan (3 So. 580, 581). 17-A. Viewing the appointment of Mr. Qureshi in the light of the above meaning of the word'is', we are of the opinion that since Mr. Qureshi had held the post of District Judge, that was sufficient to qualify him and it was not necessary that he should have actually held the post as District Judge on the date of his appointment. We are fortified in this view by the decision of the Supreme Court in South British Insurance Employees Union v. The Sind Labour Court No. 4 and others (1975 SCMR 49) wherein the facts were that Mr. A. Hamid Baluch, a Senior Civil Judge was promoted as Additional District Judge and appointed as Presiding Officer of Labour Court and tbe question arose whether he was qualified for appointment as Presiding Officer. It was argued that since Mr. Abdul Hamid Baloch had not worked as Addi tional District Judge before assuming the charge of the Presiding Officer of the Labour Court, he was not Additional District Judge and there fore, was not qualified to be appointed as such. Repelling the argument, Anwar-ul-Haq, J., (as he then was) who delivered the opinion of the Supreme Court observed at pages 50 and 51 of the report as follows"The only requirement contemplated by this provision of law is that the person is a District Judge or an Additional District Judge at the time of his appointment. Mr. Baloch having been promo ted to officiate as an Additional District Judge fulfilled this qualification, and could, therefore, legally be appointed to pre side over the Labour Court , even by the same notification."By the parity of reasoning, it was not necessary that Mr. Qureshi should have been acting as District Judge when the Special Court with him was constituted under Section 5 of the Ordinance. Any reference to definition of the term District Judge in the General Clauses Act loses its significance in the view that we have taken of the meaning of the word 'is", for Mr. Qureshi ip fact had acted as District Judge, Khairpur which was the principal Court of original Civil juris diction.
Here in italics. 18, As regards the contention of Mr, Usman Ghani Rashid that the person to be appointed as Judge of Special Court should not only be a T udge of District Court but should continue in that post, it would suffice :o say that the language of Section 5 of the Ordinance does not warrant i'-ch an interpretation nor have any reasons been advanced or precedent :;ted to support the contention, 19, In any case the orders, judgments and decrees passed by Mr. Qureshi arc saved by de facto doctrine. This doctrine gives validity to acts 'f judges de facto whatever defects there maty be in the legality of thesr Appointment. The doctrine is founded upon considerations of public D policy and necessity, for the protection of the public and individuals whosi interests may be affected thereby and to prevent needless confusion and endless mischief. We may here refer to a passage from Colley's "Consti tutional Limitations, Eight Edn,. Vol. 2 p. 1357, which reads as follows "No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity and to prevent confusion in the conduct of public business and in security or private rights the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct pro ceeding instituted for the purpose by the State or by some one claiming the office de jure or except when the person himself attempts to build up some right, or claim some privilege or emolu ment, by reason of being the officer which he claims to be. In a!! other cases the acts of an officer de facto are as valid and effec tual, which he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which fiads concise expression in the iega! maxim that the acts of officers de facto cannot be questioned collaterally.'' It is necessary to state here that Mr, Qureshi has not been made a party to these proceedings nor has any notice been issued to him. Only the orders or decrees passed by him have been questioned in the petitions. 20, The de facto doctrine has been recognized by the Supreme Court of Pakistan in Lt. Col. Farzand Ali and others v. Province of West Pakistan through Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98). The learned Judges have observed therein as follows ; "Upon these principles it was strenuously argued that the Third, Fourth and the Sixth Constitutional Amendments are now un assailable, because, at any rate the allegedly disqualified respon dents had acted as de facto members, for, they had acted under the bona fide belief that they were entitled to so act and had at least a fair colour of title and they have also performed their duties with public acquiescence. They were not purely intruders. Therefore, their acts even apart from the provisions of subclause (d) of clause (1) of Article 110 were as good as those of de jure members of the National Assembly. There is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98 (2) (b) to be disqualified from continuing as Members of the House, To do so collaterally in proceedings not taken to test the validity of iheir title directly would lead to serious inconvenience to the public and those individuals whose interests have been affected by the legislative measures enacted in the meantime, Tbis de facto doctrine is a doctrine of necessity to bring about regularity and prevent confu sion in the conduct of public business and promote security of private rights," 21. This doctrine is also recognized by English Judges. In Milward v. Thatcher [(1787) 2 TR bl at p, 8/], Builer ruled : "The question whether the judges below be proper!;, judges or not, can never be determined, it is sufficiint if they bs judges de facto. Suppose a person were even cnmina'.ly convicted in a Court of Record, and the Recorder of such Court w;re not duly elected, the conviction would still be good in law. he being the judge de facto ." In Scaddiog v, Loraist [(1851) 4 HLC 418], the question arose whether a rate for rehef of the poor was rendered invalid for the reason that some of ihs vestry men who made it were vestry men de facto and not de jure. The Lord Chancellor said as follows : "With regard to the competency of the vestrymen, who were vestry men de facto, but not vestry men dejure, to make the rate. your Lordship will see at once the importance of that objection, when you consider how many public officers and persons there are who were charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands." 22. The de facto doctrine has received judicial recognition in the United States of America also. In State v. Gardner (Cases on Constitutional Law by Me Convey & Haward p, 102) the question arose whether the offer of a bribe to a City Commissioner whose appointment was un constitutional was an offence. Bradbury J. observed. "We think that principle of public policy, declared by the English Courts three centuries ago. which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary. We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers." The same was the view of Field, J., in Norton v. Sheibj County. [(1886) 118 US 425 : 30 L ed 178], We may quote the same here : "The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appoiotment or election is founded upon considerations of public policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions, For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest thai endless confusion would result, if in every proceeding before such officers their title could be called in question." 23. The doctrine has been followed by the Supreme Court of India in Cokamju Eangaraju v State of Andbra Pradesh (AIR 1981 S.C, 1473), We may quote a passage from there which reads as follows ; "A judge, de facto is one who is not a mere intrude! or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, alb;it unlawfully, have the same efficacy as judgments pronounced aad acts done by a Judge de jure. Such is the de facto doctrine, bora of necessity and public policy to prevent needless confusion and endless mischief. The de facto doctrine saves such acts. There is yet another rule aho based on public policy. The defective appointment of a. de facto Judge may be questioned directly in a proceeding to which he be a party but it cannot bs permitted to be questioned in litigation betwe20 two private litigants, a litigation which is of no concern or consequence to the Judge except as a Judge. Two litigants litigating their private tii,le= cannot be permitted to bring the issue and litigate upon the title of a judge to his office Otherwise as soon as a judge pro nounces a judgment a litigatiop may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a collateral attack," 24. In the same case in the High Court of Andbra, Pradesh Kuppuswami and Muktadar, JJ. observed : "Logically speaking if a person who has au authority to do sn functions as a Judge and disposes of a case the judgment rendered by him ought to ik considered as void and illegal, but ;n view of the considerable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office roav bs found to b>- defective at a later date. Courts in a number oi countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a judge or officer no! legally competent may acquire validity." Since in .Constitution Petition No. U-24 of 1983 this was the only point involved we therefore, dismiss this petition, However, in the circumstances of the case we leave the parties to bear their own costs, 25. So far as C onstitution Petition No. D-97 of 1983 is concerned, we would now discuss the additional point raised by the learned Counsel. It was argued by Mr. S. Abbas Zia that the suit was decreed without there being a plaint signed by proper person. la this connection he referred to tne plea raised in paragraph 3 of the petitioner's application under Order 37 Rule 3 C P.C, which reads as follows "The plaint has not been signed bv u propc; ir-riion under Order 29 Rule 1 read with Order 6 r\i\?. u ffx'-m.! therefore the suit is liable to be dismissed/ It may firstly be stated that respondent .V. ,. M--,::u C.^muerciai Bank Ltd. filed the suit, the plaint is verified by one Jab-i: who claims to be the principal officer and attorney af respondent N;. I pla.ruiir and this claim is not denied in the application under Order 3" Rule 3 CPC and in accordance with the provisions of Rule ! of Order J^ CPC a plaint could be signed by a principal officer. We may her: cuote Rule 1 of Order 29 CPC, 1. In suits by or against a corporation, tui> pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case."' Therefore, the objection was without any substance. 27. Mr. S, Abbas Zia has relied on Messrs Mubammad Siddiq Muhammad Umar and Another v. The Australasia Bank Ltd iPl_D 1966 S.C. 84). in this case a suit was instituted by the constituted ju.-rnc> of a public limited liability company. It was held that he could -. -ily do so if he was duly authorised in that behalf and occupied one or other of the offices mentioned in Rule 1 of Order XXIX of Civil Procedure Code. In the present case, the question is not whether the suit \as instituted by the properly constituted attorney or not but the question is whether the plaint was signed by one of those persons who are mentioned in Rule I of Order XXIX CPC. " It ib admitted fact as stated before, that the attorney claimed that he was one of the principal officers of the Bank which claim has not been denied in the application for leave to defend or otherwise and therefore, the plaint is properly signed. 28. la any case, the objection raised before the learned District Judge was in a different form and not in the form in which it is taken before us. Even if we assume that the finding of respondent No, 1 on the point raised bv the petitioner is not correct still the same cannot be considered in this jurisdiction tor there is a clear jdistinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide, either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non-sxistent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. (See Nawab fe>yed Eauoaq Ali etc. v. Chief Settlement Commissioner aod others (PL! 1973 S.C. 42) and Muhammad Husain Mnuir and others v. Sikandsr and others (PLJ 1974 S.C. 60). We therefore, dismiss this petition too leaving the parties to bear their own costs, (TQM) Petitions dismissed.
PLJ 1985 Karachi 69 [DBJ PLJ 1985 Karachi 69 [DBJ Present: ajmal mian & sved haider ali piiuada, JJ Mst. JANNAT and 9 OthersPetitioners versus ABDUL KADIR and 2 othersRespondents Const. Petition No. D-199 of 1982, decided on 14-9-1983. (i) Provisional Constitution Order (CMLA'a 1 of 1981)
Art. 9 read with Civil Procedure Code (V of 1908) - S. 115 & O. VII, R, 10 and Suits Valuation Act (VII of 1887)S. 11 Valua tion of biiitObjection as toRaising of first time in appeal/revision Decree of courtReversal of PrejudiceEnquiry as toHeld ; Decree of trial court being liable to be reversed only on proof of prejudice same to be established by going into merits of decision both on question of fact and lawNo enquiry on merits of decision on question of fact held in case Held : Impugned judgment to be set aside and case to be remanded to Additional District Judge for decision afresh on question after giving notice to parties. [P. 12\B&C FLD 1968 Peshawar 148 agreed with. (ii) Suits Valuation Act (VII of 1887)-- .---S. 1 IValuation of suitObjection as to Disposal of suit Prejudicial effect onHeld : Prejudice on merits must be directly attributable to over-valuation or under-valuation (in order to ttract provisions of S. 11) Held further : Error in finding of fact reached on consideration of evidence having not possibly been caused by over-valuation or under-vaiuation, mere errors in conclusions on points for deter mmation to be ^clearly precluded by language of section. [P. 12]A (Hi! Suits Valuation Act (VII of 1887)
S. 11-See : Provisional Constitution Order (CMLA\ 1 of 1981) --Art. 9. [P, 72}BAC Mr. Abdul Fateh Memon, Advocate for Petitioners. Mr, Khalilur Rehman, Advocate for Respondent No, i . Date of hearing : 14-9-1984. judgment Syed Haider Ali Pirzads, J. This petition under Ar::cle 9 of the P.C.O. has been filed against the judgment dated 31-1 1982, passed by the Vllth Additional District Judge, Karachi, in Civil Revision No. 120 of 1977 filed by the respondent No. 1. 2. The facts giving rise to this petition, briefly stated, are that the predecessors of the petitioners Nur-Mohammad so Allah Wara>o filed a Suit in 1968, being Suit No. 499 of 1968 under Section 9 of Specific Relief Act, praying for judgment and decree for possession of the piot from the respondent No. 1 as the latter had dispossessed h;ra -lligally, id Court of IX Civil Judge First Class, Karachi. Suit was \al-ed Rs. 2uO -. During the pendency of the suit the said Nur Mohammad d:ed and his legal representatives were brought on record being the present petitioners.This suit was transferred from time to time under the admiaistrativte orders of District Judge, Karachi to Ilnd Civil Judge, First Clais, IXth Civil Judge, Karachi, and XHIth Civil Judge, Third Class, Karachi, respondent No. 3. 3. The written statement was filed on 28-5-196b. Tne suit was resisted by the respondent No. I on various grounds including an objec tion that the deceased/plaintiff has not disclosed the correct market value of the suit properly and the Court fee paid is insufficient, accordingly the suit is liable to bethrown on this ground as well. 4. On the pleadings of the parties the learned trial Court framed necessary issues. Issue No. 4 reads as follows : "Whether the Court-fee paid is in-sufficient ?" The suit was decreed by judgment and decree, dated 29th September, 1977. The Revision was filed by respondent No. 1. being Civil Revision No. 120/1977 in the Court of District Judge, Karachi, which was trans ferred to the Court of respondent No. 2. The Revision was disclosed by judgment dated 24-12-1981. 5. The respondent No. I filed a Const. Petition No. 73 of 1981 in this Court and a Division Bench passed the following order on 14-12-1981. "By consent of the learned counsel present, this petition is admitted to regular hearing and is being disposed of in terms of the consent order as under : The judgment of VII A D.J., is hereby set aside and the case remanded to him for determination of question of pecuniary jurisdiction of the trial Court with reference to valuation of Sui (Issue No. 4). This is to be decided before 31st' January, 1982. Petition is disposed in terms of the above order. There will be no order as to costs.". The respondens No. 2 by its judgment dated 31-1-1982 set aside the ludgment and decree of the respondent No. 3 and aiiowed the Revision and ordered the return of plaint to the petitioners (plaintiff) under Order 1 rule 10 C. P. C. for presentation before a Court of competent jurisdiction, after showing correct valuation of the suit property both for purposes of jurisdiction of the Court and for Court fee. 6. Aggrieved by the aforesaid judgment, the petitioners have filed this Constitutional Petition. We have heard Mr. Abdul Patch Metnon, learned counsel for the petitioner and Mr. Khaiilur Rehman, learoed counsel for the respondent No. 1. 7. Mr. Abdul Fateh Memon has raised the mam contention that the impugned judgment of dated 31-1-1982, passed by the respondent No, 2, Karachi is illegal and without lawful authority inasmuch as it is in violation of Section 11 of Suits Vaiuation Act. 8. We find from the judgment of the trial Court that the respondent No, I, who was defendant in the suit before the trial Court, failed to raise objection that the trial Court has no pecuniary jurisdiction to entertain the suit and that the act of plaintiffs/petitioners resulted in prejudice on merits of the case. Contrary to this the respondent No. 1 joined pro ceedings in the trial Courts. The respondent No. 1 filed Revision which was dismissed by a judgment dated 24-2-1981. The respondent No. 1 argued Issue No. 1 and dditional Issue No. 1. It seems that it is only when the judgment and decree in the trial Court and the judgment in Revision have gone against him that he has raised in Const. Petition No. 73 of 1981 for the first time that the trial Court had no pecuniary jurisdiction to entertain the suit and by consent of the parties the matter was remanded to the Additional District Judge, Karachi. 10. In order to appreciate the contentions of the parties, it is necessary to produce Section 11 (I) and (b) of the Suits Valuation Act. "Secs.on II (1) : Notwithstanding anything in Section 578 (now Section 99) of the Code of Civil Procedure, an objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or lower appellate Court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless," "Section (11) (b) : The appellate Court is satisfied, for reasons to be recorded by it in writing that the suit or appeal was over-valued or under-valued and that the over-valuation or under-vaiuation thereof has pre judicially affected the disposal of the suits or appeal on its merits." In Rachappa Subrao Jadha v. Shidappa Venkatrao Jaddha? reported in 46 IA 24 at page 32 the Privy Council held that the objection which was "the most technical of technicalities" was not taken in the Court of first instance, and that the Court would not be justified "in assisting an objec tion of that type", and that it was also untenable before concluding it "The C>urt Fees Act was passed not to arm a litigant with a weapo" of technicality against his opponent but to secure revenue for lh" benefit of the State. This is evident from the character of the Act, and is brought out by S. 12, which makes the decision of the first Court as to value final as between the parties, -and enables a Court of appeal to correct any error as to this, only where the first Court decided to the detriment of the revenue. The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State, but to construct the plaintiff; he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the ca>e without jurisdiction. In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court. <s misconceived, and was rightly rejected by the High Court." It is contended by Mr. Abdul Fateh Memon the learned counsel for petitioner that the learned Additional District Judge has not come to the conclusion that the prejudice has been caused to the respondent No. 1. The question therefore is can a decree passed by a trial Court which had jurisdiction to entertain it only by reason of under valuation be set aside on the ground that on a true valuation that Court was not cornpeten: to entertain the suit. The words "unless the over-valuation or undcr-vaiua-tion thereof have prejudicially affected the disposal of the suit or appeal on its merits" would become clearly useless. These words dearly shows that the decrees passed in such cases are liable to be interfered within an appellate Court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the Section results. The language of Section 1 i of the Suits Valuation Act provides that over-valuation or under-valuation must have prejudicially affected the disposal of the case on merits. The prejudice on the merits must be directly attributable to over-valuation or under-valuation and an error in a finding of fact reached on a consideration of the evidence cannot be possibly be said to have been caused by over-valuation or under-valuation, Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of this Section. We are therefore clearly ot" opinion that the decree of the trial Court is liable to be reversed only on proof of prejudice on merits and prejudice an be established by going into the merits of the decision both on ques tion of fact and of law. For determining whether there was prejudice or not, there must be an enquiry on the merits of the decision on question of fact. We find that no such enquiry was held in this case. We are in agreement with judgment of Mr. Jusice Anwarul Haq (as he then was) reported in P.L.D. 1 968 Peshawar 148 (Gul Khan v. Said Hu^stin Shah & others). The judgment lends support to our view. In this view of the .matter the Constitutional Petition is allowed, the impugned judgment is c lset aside and the case is remanded to the learned Additional District Uudge to decide afresh the aforesaid aspect after giving notice to the (parties. These are the detailed reasons in pursuance of a short order of 14-9-1983. (TQM) Petition allowed.
PLJ 1985 Karachi 79 [OB] PLJ 1985 Karachi 79 [ OB ] Present : naimuddin & K. A. ghani, JJ NATIONAL BANK OF PAKISTAN , I. I, Chundrigar Road, Karachi Appellant versus Mrs. ABIDA MUSTAJAB HASAN and AnotherRespondents First Appeal No, 37 of 1981, decided on 21-11-1983 (i) Banking Companies (Recovery of Loaas) Ordinance (XIX of 1979}
Ss. 5, 6 & 7 read with Civil Procedure Code (V of 1908)O.VII, R. 10PiaintReturn ofSpecial CourtPecuniary jurisdiction of Objection as to Amount outstanding against respondent 29 days before filing of suit being less than one lac, appellant adding one month's interest in its claim filed before courtSpecial Court, however, returning plaint on ground of its having no jurisdiction to entertain suitHeld : Special Court to have jurisdiction to entertain suit on basis of averments made in plaintHeld further : Inclusion of amount of 29 days interest prima facie being not without cause or mala fide, and question of appellant's competency to claim such interest also being question relating to defence, same to be gone into at trial of suit. [P 82]£ PLD 1966 Lah. 1050 followed. AIR 1942 Rang. 10 ref. (ii) Civil Procedure Code (V of 1908) Q.VII, R. 10PlaintReturn ofCourtJurisdiction of-Deterruination ofHeld : While determining question of jurisdiction, suit as originally framed and not evidence led or finding arrived at during trial to be looked into. [P. 80] 4 AIR 1930 Sind 252 ; AIR !944 j Sind 98 ; PLD 1959 Kar. 704 & 1981 CLC 1191 ref, (iii) Civil Procedure Code (V of 1908)
O.VII, R. !Q--See : Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)Ss. 5, 6 & 7. [P. 80]Jt Mr. Muhammad Saleem, Advocate (for Mr. Mansoor-ul-Arfin, Advocate) for Appellant. Nemo for Respondent. Date of hearing : 21-11-1983. judgment Naimuddin, J.-~This appeal under Section 12 of the Banking Com panies (Recovery of Loans) Ordinance, 1979, is from the order dated 19-5-1981, passed by the Special Court (Banking) Karachi, whereby it returned the plaint for presentation to the Court which has jurisdiction in the matter, holding that it had po jurisdiction to entertain the suit, in the following circumstances. 2. On 29-4-1980, the appellant filed a suit in the Special Court for recovery of Rs. 1,00,785.72 inclusive o,f i&terest up to 30-4 1980. 3. On 15-3-1981, the suit was fixed for hearing of the application for leave to appear and defend the suit and the Special _ Court, itself suo moiu raised the question of jurisdiction and consequently passed the impugned order, 4. The reason which weighed with the learned Special Court in hold ing that the Court had no jurisdiction is pecuniary in nature. The Special ourt on amination of the certified, copy of the statement of account filed aiongwith the plaint found from it that it had no pecuniary jurisdic tion as the total amount outstanding against the respondents as on 31-3-1980, was only Rs. 99,629.64 and an amount of Rs, I,l4o.08 Was added therein on account of interest up to 30-4-1980. Since the plaint was presented in the Court on 29-4.1980, the said Court therefore, concluded that the appellant could not claim interest upto 30-4-1980. It further found that under the Promissory Note the interest was to be calculated with quarterly rests and couid be added therein after three months unless the account of the respondents was closed. It held that she appellant could not under the agreement, add interest before the expiry of three months after the last interest was calculated on 31-3-1980, It reasoned that if the appellant was allowed to add interest from 1-4-1980 to 29-4-1980 to the dues, it would under the decree be entitled to get interest even on the interest of this period which would he against the agreement, whereby the interest is to be calculated with quarterly rests and that would amount to charging interest with 29 days rest and not quarterly rests. It was therefore, of the opinion that the amount that could be claimed by the appellant as legal dues at the tirae of presentation of the plaint was less than Rupees one lac, and accordingly, Court had no jurisdiction 5. Aggrieved by the aforesaid order, as stated herein before, the appellant has filed the present appeal. 6. We have heard Mr. Muhammad Saleem learned Counsel for the appellant. The respondents have been called absent. 1. It is submitted by Mr. Muhammad Saleem that the Special Court (Banking) had to determine its jurisdiction on the basis of averments made m the plaint and that no doubt, the statement of account forms part of the plamt, but it showed the amount outstanding as Rs. 1,00,785.72. He further submitted that the question whetner the amount of interest of Rs. 1,146.08 for the month of April, 1980 could be claimed or not was a matter pertaining to defence if raised. It did not arise per se. He aiso submitted that if the amount, of interest for the month of April is excluded from the month of the ciaira, which would be hardly about Rs. 40/- the amount Is still within the jurisdiction of the Special Court (Banking) for it had jurisdiction in the matter exceeding Rupees one lac, 8. We may state that it is well settled that in order to determine whether the Court has jurisdiction, the suit as originally framed and Instituted has to be looked into and not the evidence led or findings arrived at during the trial. We may here refer to two pre-independence decisions of this Court .in GovenJhsndas Vishinda v. Mt. Rijhibai and others (AIR 1930 Sind 252), and (2) Ahmad Shah s/o Fa«at %km v. Messrs. Grindlay & Co. Ltd. (AIR 1944 Sind 98), 9. in the first named case it was held by Rupehsfld and Wild, A. J, C's at page 253 of the report as follows : "O.7, R. 10, Civil P. C-, only appli.es when it is found that the suit as originally framed was wrongly instituted in that Court, but it does not apply when it is found a 4 the trial whether as the result of admissions made by the parties or evidence led by them, that the relief which the plaintiff was really entitled to was different from that claimed in the suit and that that relief was not cognizable by the Court, In the latter ease the Court cannot deeiine jurisdiction and order the plaint to be returned for presen tation lo the proper Court but should proceed with the trial to its finish either after amendment of the pleadings or otherwise and to pass such decree as the circumstances permit.' 1 10. The Goverdhandas Vlshindas's case was followed by Tayyebji, J. in Ahmed Shah s;o azal Rahim v. Messrs. Grindlay & Co, Ltd, (AIR 1944 Sicd 98), 11. Mr. Muhammad Saieem learned Counsel for the appellant has also relied on Mir Lai Alj nd others v Syed Mohammad Jafari [PLD 1559 (W, P.) Kar. 704] ,-iad (2) Shah MuiiSBiaiad . Kbushal Muhammad &ud 3 ttifoei-: U9a! CLC 1191). 12. In the first named case it was held by Inamullah, J. that it is well settled ule of law that, in order to find out whether the Court has jurisdiction or not the allegations in the laint alone have to be looked into. 13. In the second cited case it was ruled by Khursheed Ahmad, J. at page 1193 of the report, hat so far as the question of jurisdiction is con cerned it is an established proposition of law that sn rder to see whether the Civil Courts had jurisdiction to try a suit the averments contained in the laint without adding a single word by way of defence ought to have been taken into consideration. eliance was placed on another decision of Lahore High Court in Mst. Zainab and others v. Fazal ad and uiii«r$ (PLD 1966 Lah, 1050), wherein at pages 1052-1053, it was observed by Sardar Muhammad Iqbal, J. (as his Lordship then was), as follows ; "The suits were instituted only on the basis of title and there use plaintiffs did not. at a!S allege that the defendants were their tenants looking at tfce allegations in the plaint there can be no doubt whatsoever that the civil Court had the jurisaictlon to try these cases because it is a well established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and nut on the basis of any defence thai may be taken up. In Glenn v. Baija and others (AIR. 1927 Lab.. 452) if was he!d that in order to ascertain the nature of a suit the general rule is that the allega tions in the plaint must, primarily, be looked to and that these allegations govern the question of jurisdiction. The same view was affirmed in Baru and others v. Naidar aatf aflier« (AIR 194;' Lah. 217), It was also held ui Muhammad Yusuf v. Nek Muhammad (PLD i955 Lah, 183) that the jurisdiction of a Court is determined ciat by the picas of the defendant but by the allega tions in the plaint. As indicated above, the pfatotiffs suits. according to the allegations in the plaint, were only for the recovery of the possession of the land in dispute on the basis of title as owners of the land, the defendants being treated as tres passers Their suits were against the defendants not as the tenants but as trespassers. Prirna facie' therefore, the suits were cognizable by a civil Court." 14, Following the principle laid down in the above cited case we find that the Special Court has had jurisdiction to entertain the suit on the basis of averments made in the plaint for the question whether the appeiiant could have claimed interest for 29 days was a question relating to defence and could be gone into at the trial of the suit, if leave was granted, other wise it could have been considered at the time of passing the decree, and it could not prima facie be said that the amount of interest of Rs 1,146.08 included in the claim was without cause and was mala fide included to bring the suit within the pecuniary jurisdiction of the Special Court. 15, We may here refer to Khem Raj v. Durgi (a) Durga Myaya [(29) AIR 1942 Rang 10], which is a Division Bench case of Rangoon High Court, wherein one learned Judge at page 10 of the report observed as follows : "the mere finding of the plaintiff's having put a higher value on the subject-matter of the suit does not per se justify an order for the returning of the plaint, for according to the answer given by the Full Bench such an order will be justified only if it is also found that the valuation is not made bonafide and has been made in order to effect and improper purpose," While the other Judge in a separate note ordered as follows : "If the District Court finds that the valuation was made bona fide and not in order to effect an improper purpose., it will then proceed with the suit. If it finds that it was made mala fide and in order to effect an improper purpose, it will return the plaint to be presented to the Court in which the suit should have been instituted." 16, There is no doubt that the appellant has included interest for one day i.e. 30-4-1980, though it had filed a suit on 29-4-1980, which obviously the appellant could not have included. The amount of interest is about Rs. 38 00. If this amount is excluded from consideration for the purposes of jurisdiction, the suit was well within the pecuniary jurisdiction of the Court. 17, While reaching the conclusion as above, we are not unmindful of the amendments incorporated by Banking Companies (Recovery of Loans) (Amendment) Ordinance No. II of i9S3 in the Ordinance of S979, whereby the Special Courts other than the High Court, have now been vested with jurisdiction to try cases in which the outstanding amount of the loan oes not exceed one million rupees. Thus in any view of the matter, the case is to be tried by he Special Court other than the High Court. 18, We therefore, allow the appeal and remand the case to the Special Court (Banking) for trial in accordance with law. However, since the respondents have not appeared to defend the appeal and the point on which the order passed was raised by the Court suo muto we leave the appellant lo bear its own costs. (TQM) Appeal allowed.
PLJ 1985 Karachi 83 [OB] Present: Z PLJ 1985 Karachi 83 [ OB ] Present : Z. C, valliani & saleem akhtar, JJ COMMISSIONER OF INCOME TAXApplicant versus Messrs. GUEST KEEN & NETTLES FOLD ( PAKISTAN ) LimitedRespondent Income Tax Reference No. 796 of 1972, answered on 13-10-1983. Income Tax Act (XI of 1922)-
S 15-DDonation- Rebate onClaim ofAssessesRight to allocateAssessee paying donation to National Defence Fund out of common fund of exempted and taxable incomeHeld : Option to He with assessee to allocate such donation to any income he choosesHeld further : Department not to be competent to split donation or apportion it proportionately or entirely to any of specified income, [P ]85 A Shaikh Haider, Advocate for Applicant. Mr. I. N. Pasha, Advocate for Respondent. Date of hearing : 13-10-1983. judgment Saleem Akhtar, J.The department has Sied this application under Section 66 (1) of the Income. Tax Act raising the following question : "Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in allowing rebate on the entire amount of donation to National Defence Funds ? The assessee respondent is a private limited Company. During the assess ment year 1966-o7 it carried on business in manufacturing as well as agency in two different divisions. The Manufacturing Division enjoyed tax holiday under Section 15-BB of the Income Fax Act. The Company maintained accounts of the two divisions separately and during the relevant assessment year it showed a net loss of Rs. 2,85,i36/- in the tax holiday unit and a profit of Rs. 26.050/- in the agency division. The company had donated Rs. 31.010/- to the National Defence Fund in the relevant accounting year. The cash book showed the funds of both the Divisions and this contribu tion was made out of the common fund and was debited in the cash book accordingly. The respondent company claimed full contribution in agency division and nothing was claimed in the manufacturing division which was exempt from tax. The Income Tax Officer assessed the income of the agency Division at Rs. 43.803/- and disallowed the entire donation. However, for the purpose of allowing rebate under Section 15-D of the Act he only considered half of the donation relatable to the assessee's agency business and the other half to the Manufacturing division enjoying tax holiday. The appeal SSed before she learned Tribunal was allowed and the Income Tax Officer was directed to allow rebate oa the full amount of donation under Section 15-D of the Act, Mr. I,N. Pasha, the learned counsel for the respondent has contended that as the donation was paid from the common fund without specifying from which division it was paid, the option lay w ; th the respondent to claim it in respect of income from any division. The admitted position is that respondent was carrying on business bj ;wo different divisi.-.^s, One called the manufacturing division and the other agency division. The manufacturing division enjoyed tax holiday under Section 15-BB of the Act. The respondent made contribution of the common fund. The fact that he had claimed the entire amount from the agency business proves that he aad paid it from that income, In these circumstances question arises whether the Income Tax Officer had the authority to apportion the donation in two portions, The learned counsel for the Department has not been able to point out to any provision authorising the Income Tax Officer to make such apportionment. Nor any provision has been referred which restricts the assesses from allocating such donations to any division of bi-s income. Section 15-D provides that "the Tax shall not be payable be any assessee in respect of any sums paid by him as donation. Such donation can be paid out of the taxable income or exempted income. The sole discretion to decide apportionment is entirely w jth the assessee and not the Assessing Officer, The assessee >s free to manage his own affairs according his own wishes. In this regard the learned counsel for the respondent has referred to R"ja Sheri Sailesdra Narnyan Bhanja JDeo v. Commissioner of Income Tax Bihar ai?d Orissa] (1959) 36 !TR 94]. In that case the assessee who derived agricultural and non-agricultural income donated Rs. 10,000,'- to charitable jn^titntlin approved under the Income Tax Act and claimed exemption from Tax. The Income Tax Officer found that Rs. !O t OOO/- was debited in compos! f e cash book without specifying whether it came out of the agricultural or non-agricultural income. The Department apportioned the donation to both the incomes proportionately. Ultimately (he Question was referred to High Court whether the assessee was entitled to rebate on th«5 entire amount of Rs, IQ.OOQ/- and noi on the proportionate amount paid out of non agricultural income. The High Court answered that the Department was not entitled to apportion the contribution between the agricultural and non-agricultural income of the assessee and he was entitled to exemption from Tax of the entire sum of Rs, 10,000 -. Reference can be made to Rajandra Nsraia v. Commissioner of Incciae Tax (AIR 1929 Pat. 449) where the assessee claimed exemption in respect of income arising out of a building maintained for collection of agricultural income which was not taxable. It was held that the Department could not apportion as say that only a proportionate income from a portion of the building necessary for agricultural purposes would be exempted. In Central Provinces & Berar Provincial Co-operative Bank Ltd. f. Commissioner of Income Tax. [(1946) 14 1TR 479] it was observed that in computing the income under Section 8 of the Income Tax Act, the Department was not justified in splitting up and apportioning the interest on borrowed capital between the taxable and tax-free securities ta proportion to the amount spent on the purchase of each kind of security and allowing deduction only in respect of the interest so apportioned to taxable securities, 11 ' Reference can also be made to (1947) 15 ITR 346. It is thus wel! settled that where the assesses has paid any donation for which be is entitled to claim exemption or rebate, out of the common fund of exempted income and taxable income, the option lies with the assesses to allocate this donation to any income he chooses. The Department can not split the donation or apportion it proportionately or entirely to any of the] specified income. We therefore answer the Question in the affirmative. (TQM) Reference answered accordingly.
PLJ 198S Kar0M 85 [DB] PLJ 198S Kar0M 85 [DB] Present : nasir aslam zahid & cyi?d haider ali pjrzada, JJ MUHAMMAD ALI GHANI KHANPetitioner versus SIND LABOUR APPELLATE TRIBUNAL, Karachi and 2 Others-Respondents Const. Petition No. D-767 of 1978, decided on 27-5-1984, (i) Industrial Relations Ordinance (XXII! of 1969) -- Ss. 25-A & 2 (xxviii) read with Industrial & Commercial Employmeat (Standing rders) Ordinance (W. P. Ord. VI of 1968) S. 2 (i) & S. O. 12Individual rievance-Redress ofApplication forWorkmanDefinition of-Applicability etitioner claiming violation of Standing Order 12 to maintain application under S. 25. A of ndustrial Relations Ordinance, 1969 He!d : Definition of work man in S. 2(xxviii} of 19o9 rdinance being not applicable, petitioner must be workman under definition in Standing rders Ordinance, S968. [P. 69]A (it) Industrial & Commercial Employment (Standing Orders) Ordinance (W. P. Ord, VI of 968) S. 2 (i)WorkmanDefinition ofHeld : In order that employee be "workman" for urpose of 19o8 Ordinance, nature of his work must be cither manual (whether skilled or unskilled) or clerical. [P. 89] PLD 1969 Lab. 717 ref. (Hi) industrial & Commercial Employment (Standing Orders) Ordinance (W. P. Ord. VI of 98) S. 1 (/)-Workman -Definition ofHeld : Person employed to do skiiled or unskilled or clerical work in industry or commercial stablishment to be workman within definition contained in S. 2 of OrdinancePetitioner working as Manager of PI A branch or booth of respondent P"nk at time of termination of his servicesPower-ofattorney given "> him by Bank entitling him to perform number of managerial and administrative acts and to generally act on behalf of BankHeld : Petitioner having been empowered to do unportart administrative and managerial functions wholly outside ambit of workman employed to do manual or clerical functions, petitioner not to be considered to be workman for purposes of Ordinance. [P. 87JC & D O) Industrial & Commercial Employment (Standing Orders) Ordinance (W. P. Ord. VI of 1968) - S. 2 (/) & S. O. 12See: Industrial Relations Ordinance (XXIII of 1969)S, 25-A, [P. 89]^ Mr, Ali Amjad, Advocate for Petitioner. Mr. Ibrahim Pishori, Advocate for Respondent No, 3. Dates of bearing : 19 & 20-3-1984. JUDGMENI Syed Haider Ali Pirzada, J.In this petition under Article i99 of the Constitution of the Islamic Republic of Pakistan lead with Laws Continu ance in Force Order 1977, it is prayed that the orders of the respondents No. I & 2 holding that the petitioner was not a "workman" be declared as unlawful and of no legal effect and farther to declare that the petitioner was a "workman" within the meaning of the Standing Orders Ordinance 1968 and the I.R.O. 1969, and to direct the respondent No. 3 Bank to re-instate in service with full back benefits, 2. The brief facts of the case are that the petitioner applied to the respondent Bank for the post of Probation Officer. The respondent Bank by its letter dated 15-6-1965 offered the same to the petitioner which offer was accepted by him and he was confirmed with, effect from i6-6-19t>5. He was posted in different branches of the respondent Bank and finally he was posted at the Airport counter of the respondent Bank P.I,A. Branch where he was alleged to have misbehaved with a customer on 31-1-1972 and accordingly on the allegations of misconduct repeated charae-sheets were issued to him on 4-2-1972, 14-2-1972 and 18-2-1972. According to the respondent Bank the repetition of charge-sheets was necessitated be cause the petitioner was constantly avoiding to accept the charge-sheet and subsequently, the petitioner absented himself from duty from 15th February 1972 to 18th September, 1972 Without any intimation to the respondent/ Bank The respondent/Bank accordingly dismissed him from service w.e.f'. 19-9-72 on the ground that the petitioner had failed to comply with the respondent's repeated instructions to report to the Bank's Medical Officer which amounted to wilful insubordination and disobedience, constituting a misconduct under the West Pakistan Industrial & Commencal Employment (Standing Orders) Ordinance, 1968. Dismissal order is annexed to the petition as annexure "A". 3. The petitioner submitted a grievance notice on 6-6-1972 requesting the respondent/Bank to withdraw the dismissal order and to reinstate him io service on the ground that the respondent/Bank did not hold any enquiry at all in his case In any case it was pleaded therein that he was dismis sed without affording him any opportunity. This action of the respondent/ Bank was alleged as violating the principles of natural justice inasmuch as he was not charge-sheeted nor any enquiry was held against him. The petitioner's grievance notice dated 6-10-1972 was rejected by the Bank's letter dated 16-10-1972 on the ground that be was found guilty of wilful sub-ordination and disobdience of orders of the management, which con stituted a serious misconduct as such his request was not accepted to. He preferred an appeal which was dismissed. On 8-4-E973, the petitioner filed an application under section 25-A of the I R.O. 1969 before the Junior Labour Court . The respondent/Bank in its written statement pleaded that the petitioner was an officer within the meaning of sec tion 2 (XXVIII) of the I R.O. 1969. The Junior Labour Court dismissed the application of the petitioner by an order dated 4-10-1973. The peti tioner preferred an appeal before the V! Sired Labour Court, Karachi, which was allowed by an order dated 16 2-1974 and the Labour Court set aside the order dated 4-10-1973 on the ground that the respondent/Bank did not produce the copy of the General Power-of-Attorney given by the Bank to the petitioner and also did not produce any evidence as to what are the functions and duties of the petitioner and as such the case remand ed to the Lower Court for recording all the evidence and to decide the matter in accordance with law. The application of the petitioner then came up for hearing before the Junior Labour Court No. Ill, on 23-4-1974. The learned counsel for the respondent/Bank was not present and did not adduce any evidence as such the application was allowed on 23-4-1974. The respondent/ Bank chal lenged the order in Constitution Petition No. S.833 of 1974 in the earstwhile High Court of Sind and Baluchistan, Karachi, which was allowed oo 18-5-1976 and the case was remanded for disposal in accordance with law, After the remand of case, the application came up for ^bearing before the III Sind Labour Court who after recording the evidence of the parties and after hearing arguments of the learned counsel for the parties, dismissed the application vide order dated 21-3-1977 and ^held that the petitioner was not a workman. The petitioner preferred an appeal being Appeal No. K.AR-123 of 1977 before the respondent No. 1. The learned Smd Labour Appellate Tribunal, after hearing the arguments of the learned counsel for the parties, dismissed the appeal by an order dated 30-7- ! 977, and held that the petiiioner was not a workman. The orders dated 21-3-1977 and 30-7-1977 are under challenge in this petition. We have heard Mr. Ali Amjad for the petitioner and Mr, Ibrahiai Pishori for the respondent/ Bank. 4. Mr. Ali Amjad, the learned counsel for the petitioner, contended that the petitioner was a "workman" within the meaning of section 2 clause (XXVI If) of the I. R.O. 1969 and also under section 2 (/) of the West Pakistan Industrial & Commercial (Standing Orders) Ordinance 1968. It was strongly contended by Mr. Ali Amjad, the learned counsel for the petitioner, that the petitioner was a workman and though designated as an officer was carrying out; and was required to carry out clerical duties and was posted at the Airport counter of the respondent/Bank. O the other hand, Mr. Ibrahim Pishori, the learned counsel for the respondent/ Bank contended that the petitioner was appointed as an officer in the respondent/Bank and he was posted at the Airport Bauk as manager and was employed within the meaning of section 2 clause (XXVIII) of the LR..O. and section 2 (c) of the West Pakistan Industrial & Commercial (Standing Orders) Ordinance 1968. It was further contended that the petitioner had been running independently the P.I. A. Unit of respondent/ Bank dealing with foreign exchange and all the staff posted at that unit was working under him ; he was doing mainly managerial work and has been working in administration capacity as a competent officer , hs was vested with ail such powers and practically conferred upon him by virtue of power-of-attorney which he was holding until he worked with the respondent/Bank. It was, therefore, urged that the petitioner was employed in managerial and administrative capaciay as a branch manager of the respondent/Bank. 5. In order to appreciate the contentions of the parties it is necessary to reproduce section 2 (v/u) and (e) and (xxviii) of the I. R. O. 1%) and section 2 clauses (c), (i), (//), (A) and (/) of the Industrial and Commercial Employment (Standing Orders) Ordinance. 1%8 as follows Section 2 of I.R.O., 1969 : "(vi/i) "employer", in relation to. an establishment, meaning any person or body of persons, whether incorporated or not, who or-which employs workman in the establishment under a contract of employment and includes :'' (e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or other officer or person concerned with the management of the affairs thereof. (xxviii) "worker" and "workman" means any person not falling within the definition of employer who is employed (in cluding employ meat as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as & consequence of that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute." Section 2 of Standing Orders Ordinance 1968 : "S 2 (c) "employer" means the owner of an industrial or eommericai establishment to which this Ordinance for the time being applies, and includes (/) in a factory, any person named under clause (c) of sub section (1) of section 9 of the Factories Act, 1934 (XXV of S934), as manager of the factory : (ii) in any industrial establishment under the control of aay department of the (Federal or any Provincial Government the authority appointed, by such Government in their behalf, or where not such aut! ority is so appointed, the head of the department ; attorney on behalf of the respondent/Bank to exercise certain functions as an officer on its behalf which could hardly be understood as functions of purely clerical nature It may be noted that the respondent No 3 is a bank and all its functions hava to be performed through a B:>ard of Directors whether individually or collectively and accordingly by Article 115 of the Articles of Association certain of the power were to be delegated. It is pertinent to reproduce Article 115 (3) of the Articles of Association. "The directors may at any time, and from t-me to time, by power of attorney under the seal, appoint any person to be the attorney of the company for such purposes anu \ith such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under these presents), and for such period and subject to such conditi >ns, as the director may from time to time think fit and any such appointment may (if the directors think fit) be made any local boards established as aforesaid, or in favour of any company, or of the members directors, nominees or managers of any company or firm, or otherwise in favour of any fluctuating body of person whether nominated directly or indirectly by the directors, and any such power of attorney may contain such provisions for the protec tion or convenience of persons dealing with such attorneys as the directors think fit". We are of the view that these powers could not be exercised by a subordinate or a clerk or a "workman" as defined in the Ordinance. 8. Mr. Ali Amjad took us through the evidence to contend that the main work of the petitions was of a clerical nature. A submission was made that the nature of the duties of the petitioner as shown from the evidence on record may be seen to find out whether the concerned employee was a workman. There is no dispute about the law laid down by the superior Courts in such cases. For an employes in an industry or commercial establishment to be a workman within the definition con'ained in Section 2 of Industrial & Commercial (Standing Orders) Ordinance 1968, it is manifest that he must be employed to do skilled or unskilled work or clerical work. If the work done by an employee is not of such a nature he would not be a "workman". It is not disputed that the petitioner at the time of termina tion of his services was working as manager of the P. I. A. branch or booth of the respondent Bank and further a power-of-attorney had been given to him by the Bank as far back as 1965. The said powerof-attorney entitled the petitioner to perform a number of managerial and administrative acts and generally to act on behelf of the respondent Bank. Some of these acts were authorised to be done by the petitioner jointly with another attorney, and others by him individually. Looking to the wide powers conferred upon him by the aforesaid power-ofattornev it is clear that the petitioner was empowered to do importao', administrative and managerial functions which are wholly out side the'' ambit of a workman employed to do manual or clerical functions. In our view, the concurrent finding of the Labour Court and the Labour Appellate Tribunal is based on evidence. We see no reason to interfere with such concurrent finding in this Constitutional Peti tion. 9. We are also in agreement with judgment of D. B. of this Court reported in P. L, D. 1982 Kar 913. In this case the burden was on the ^ respondent/Bank to prove that he was not a workman and this burden was discharged. The D. B. authority lends support to the view that we have taken that looking to the. duties which the petitioner was required to perform and his status, he cannot be considered to be a "workman" for the purpose of the said Ordinance. 10. The upshot of the above discussion is that this petition fails. We accordingly dismiss the same but the parties will have to bear their own costs. (TQM) Petition dismissed.
PLJ 1985 Karachi 91 PLJ 1985 Karachi 91 Present : sajjad ali shah, J Mst. AKHTAR SULTANAAppellant versus Syed ABDUL QAYYUMRespondent First Rent Appeal No. 802 of 1982, decided on 28-8-1984. Sind Rented Premises Ordinance (XVII of 1979)
Ss. 14 & 21 Eviction Summary procedure for Widow Persona! requirement ofTenant using premises for running restau rant Landlady, being widow, requiring premises for her bona fide personal need and for use and occupation of her childrenLandlady intending to allow her children to take up actual running of restaurant--Rent Controller dismissing application on ground of premises in question being required for need of children, benefit under S. 14 of Ordinance not to be available Held : Landlady re maining main beneficiary in allowing her children to run business of restaurant, order of dismissal of application to be set aside and case to be remanded back to Rent Controller for decision on merits. [P. ]A & B Raja Sikandar Khan, Advocate for Appellant. Mr. Mtaullah Khan, Advocate for Respondent. Date of hearing ; 28-8-1984. judgment This first rent appeal is directed against the impugned order dated 26-5-1982 passed by the learned Senior Civil Judge/Controller-V Karachi, whereby he has dismissed application for ejectment filed by the appellant/ landlady on the grounds that benefit of section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as the said Ordinance) is not available when the disputed premises are required for the need of landlady's children and further that application under Section 14 of the said Ordinance was not maintainable. 2. Briefly stated the relevant facts giving rise to this appeal are that appellant Mft. Akhtar Sultana, who is landlady of disputed premises, filed an application against Syed Abdul Qayum, respondent before me who is enant for ejectment under Section 14 of the said Ordinance on the ground that the accommodation in dispute, which is being used as -'Restaurant" was required in good faith for personal use of the landlady, who haa become a widow and for the use and occupation of her children. Notice as contemplated under Section 14 for vacation of disputed premises was duly served on the tenant. Tenant contested the proceedings before the learned Rent Controller, filed written statement in which tenancy was admitted but it was denied that premises were required by the landlady for her personal need and the need of her children. Parties filed their affidavaits of evidence and were cross-examined. In view of the pleadings of the parties, the Court framed two legal issues to the effect that whether the landlady was entitled to avail of benefit of section 14 of the Sirid Rented Premises Ordinance, 1979 and whether the application for ejectment under Section 14 was maintainable. The controversy was with regard to fact whether premises were required for the personal use of the landlady and her children. In this context, it \vas pointed out to the Trial Court that the landlady had admitted in her cross-examination that she would not run a shop in the disputed premises but her children would do that. On this premise, it was argued that if the premises in dispute were required by the landlady and not for her personal use but for the personal use of her children, then section 14 of the said Ordinance will not be attracted and application for ejectment would be filed under Saction 15 oi the said Ordinance. It was further argued that Section 14 would applyonly when the premises were required for personal use of those persons who are specifically mentioned in section 14 and need of children is specially mentioned in S.-ction 15 but not in Section 14. The learned Rent Controller in the impugned judgment has fully agreed with this argument and has further relied upon the case of A. S.' Mughal v. Mst. Kburshid Azmat AH (P. L. J. 1982 Karachi Page 228). Relying upon the above mentioned reported case the learned Rent Controller came to the conclusion that benefit of section 14 of the said Ordinance is not available for the need of children and application for ejectment under Section 14 was not maintainable and consequently he has dismissed the application with costs, 3. Learned counsel for the appellant has produced before me a certified copy of the judgment of the Supreme Court of Pakistan in appeal arising from the same reported case of Mst. Khurshid Azmat All r. A. S. Mughal, whereby judgment of the High Court has been set aside. Relevant paragraph of the judgment of the Supreme Court is reproduced as under : 'This brings us to the question as to whether the Rent Controller was justified in allowing the application for ejectment on the ground that the premises was also required for the use of the appellant's daughter. It was contended by the learned counsel for the appellant that in the present case the requirement for the daughter of the appellant was also virtually the requirement of the appellant herself because, she, being old and in urgent need of her daughter's support at every moment of her life, required the disputed premises to accommodate her daughter with her and it bad been established on the record that A/rt.'Mah Jabeen with her children had all along been living with the appellant. It was also pointed out by the learned counsel that the appellant had in fact claimed possession of the disputed premises for her personal bona fide use as well, as was clear from paragraph 2 of her application for ejectment and paragraph 5 of her affidavit of evidence. In this context, it was asserted that the allegation, that the premises were required for the use of the appellant's daughter was sub sidiary in nature and the primary requirement continued to be the personal requirement of the appellant herself". 4, In the instant case the learned counsel For the appellant has argued before me that from the pleadings as well as evidence rought on the record no such mpression can be gathered that the landlady has admitted in un-equivocable terms that she needs the accommodation in dispute for personal use of her children and not for herself. In the application for ejectment filed before the learned Rent Controller she has specifically stated that she needed the disputed premises in good faith for her personal use and for use and occupation of her children. She has reiterated this fact in paragraphs 4 and 5 of her aflidavit-in-evjdence. In her crossexamination she has stated that she observed pardah but moved about in Mohallah, clad in a Burqa. She never ran a shop. She ould ot run a shop even now but her children would run it. From the assertions made by the landlady in her cross-examination as stated bove, the learned Rent Controller has deduced that the landlady has admitted that she did not want premises in question for her personal se but wanted the same for the use of her children. The reading of the whole evidence of landlady shows] that her only intention was to onvey that since she is a pardah-nasheeri lady, she would not sit in the Restaurant and run the bus.ness herself but would allow her hildren to do so. She never meant to say tir-' the premises were not required for her personal use. On contrary she would remain s main beneficiary. It is understandable that she being pardahnasheen lady would not be able to run business of estaurant hence she would allow her children to take up the actual running of the Restaurant and nowhere she has stated that she would ot be a party to the benefits of that business. 5. For the facts and reasons stated above, 1 set aside the impugned order and remand the case back to the learned Rent Controller for decision on merits. From the impugned cider it appears that preliminary legal issues were framed. Now since the reported judgment relied upon by the learned Rent Controller has been set aside by the Supreme Court, the position becomes different and it would be only fair to allow the parties to add to the evidence already recorded on the issue whether premises in question are really required by the landlady for her own use and her children, then full-fledged arguments be heard and the parties be allowed to take steps which are permissible under the law and thereafter ths decision be given in strict accordance with law and merits. In cross objections iled in t is appeal, tenant has made a grievance that he was not allowed by the learned Rent Controller to file amended written statement and receipts produced by him specified in the said application for amended written statements were not considered. In this context, I would say only this much that the learnsd Rent Controller after hearing both the parties has passed a well reasoned order dated 3 5-1982 to which no exception can be taken. Remand is allowed in the terms stated above. There will be no order as to costs. Appeal is allowed. The learned Rent Controller is directed to complete the proceedings within two months. (M1Q) Appeal allowed.
PLJ 1985 Karachi 109 PLJ 1985 Karachi 109 Present : saleem akhtar, J GHULAM MUHAMMADAppellant versus Mst. SHAMEEMA KHATOONRespondent First Rent Appeal No, 121 of 1982, decided on 17-4-1984. (i) Urban Sent Restrictioa Ordinance (W. P. Ord. VI of 1959)
S. 13 (2)Rent Deposit of Order of ~ Non-compliance of DefenceStriking offApplication forDelay in filing ofDefault not brought to notice of Controller for period of one year or more- Held; Courts (generally) treat such delay as waiver on part of landlord to object to defaultApplication uader S. 13 (6) in case filed almost after two years and nine months of default Landlord also mean while withdrawing rent deposited in CourtHeld : Delay (in filing application) to constitute waiver. [P. 114]i) PLU 1965 Lab. 11 ; PL] 1984 Kar, 172; PLD 1966 Kar, 523, PLJ 1974 Kar. 2 ; PLJ 1979 Lab. 544 : PLD 1963 Lah, 436 & PLJ 1980 Kar. 140 re/. (ii) Urban Rest Restriction Ordinance (W. P Ord. VI of 1959)
S. 13 (6>RentDeposit of Order of Non-conjpliance of Effect ofWaiverPlea of Held: There being implied duty on landlord to file application for striking off defence of tenant and not to remain silent, failure on his part to make such application lor unreasonably long period to amount to waiver. [P. 113 & 114JC (iii) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)--
S. 13 (6)RentFailure to depositDefenceStriking offTenant defaulting to deposit rent or arrears in terms of ouer passed by ControllerHeld : Defence not to be struck off unless default be wilfulHeJd further : Opportunity to be given to tenant to prove circumstances preventing him from depositing rent. I.P, H3j£ (iv) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)-
S. 53 (6)Future rentOrder of deposit ofDefault in Effect of Tenant making default in depositing rent for particular month on date fixed by Rent ControllerRent falling due for subsequent mon ths, however, deposited within timeHeld : Circumstances unless warrant such conclusion, such deposit (for subsequent months) not to be adjusted towards rent for month in respect of which default com mitted. [P. lll],4 PLJ 1980SC 33 ref, Mr. M, Rashiducldin, Advocate for Appellant. Mr, M. Ishaq Shams, Advocate for Respondent. Date of hearing : 13-2-1984, judgment The appellant is a tenant in respect of a shop on plot No. 5G-IL , Nazimabad The respondent filed an ejectment application aga.nst the appellant on the ground of re-construction of the building an. 1 , default in payment of rent. The appellant denied the respondent's Jj;m. On 12-11-1976 the learned Controller passed an order for deposit of rent :n the following terms : "Hence I direct the opponent to deposit the amount of R-. !_> - for the rent of February, 1977. The opponent is futthes directed to deposit the rent for March, 1977 in Court in this, case at rate of Rs. 60/- p.m. before the 15th of April, 1977 The opponent is further directed to deposit the future rent at the rate of Rs. 60;- p.m. before 15th of each following months in this case The deposit made in Misc, Rent Case No, 2P9/76 be transferred to this case' , The respondent filed an application on 245-1977 under section 13 (6j of West Pakistan Urban Rent Restriction Ordinance for striking oft' the defence of the appellant on the ground that the rent order has not been complied with, this application was granted or, 30th September, 1978, However, an appeal filed against rhat order was allowed on 17-5-1979. On 3-3-I9SO the respondent filed another application for striking off the defence on the ground thai the appellant has made default in deposit of rent for June, 197? and for the months from August, 197? to June 1978 within the time prescribed by the rent order, The appellant plead ed that due to harassment and confusion created by the aTtornev of flurespondent and disturbance in the C'ty be forgot that no rent was deposited by him from 20th May, 1977 until 7-8-1977 with the consequence that the rent for the m
ath of June, 1977 which ought to have bi;n deposited before 15-7-1977 was not made". Tns appellant has farther stated that when he deposited Rs. 120/- on 8-8-1977 he was labouring under the im pression that he had already deposited the rent for th; month of June, 1977, and treated this deposit towards the rent for the months of July and August, 1977. Fi'jfti the statement of accoartt it is clear thai the appsllant deposited Rs. 120/- on 8tli August, ,1977 thereafter till October I97s rent was deposited at rate of Rs. 60 - p.m. within the prescribed lime. Therafter, it seems that he started depositing rent in advance for two months or three months and soms times even for four months. AH these payment would bs In, time if Rs, 120/- deposited in August, 197? are treated towards rent for July and August, However, if it is treated towards the month of Juris and July then there is a clear default in al! the subsequent months as claimed by the respondent. The learned counsel for the appellant has further contended that the calculation made by the Controller is erroneous as the appellant did not deposit the rent for the month of June, 1977, but thereafter, he has been continuously and regularlydepositing the rent within the prescribed time. Mr. Ishaq Shams the learned counsel for the respondent contended that unless rent for earlier month has not been deposited the payment of subse quent months will not be be legal. In this regard the learned counsel has relied on Amant Khan v. Begum Jtn (PLJ !980 S.C. 33) In that case the tenant had failed to pay rent for the period from August to December, 1974. He later tendered rent for Jan. 1975 to June, 1975. He further claimed adjustment of the unpaid rent towards repair charges but failed to prove it. It was held that "even upto date the rent for the period in have waived the right to object to it. In the present case the appellant had not paid the rent for the month of June in due time, bu: on 31-10-1978 he deposited Rs. 180 which can be adjusted towards the rent for October, November, 1978 and June, 1977 because ;n the previous months deposits were made regularly. The respondent withdraw the amount irora Court on 21-10-1978. The question arises whether in these circumstances, the default has been waived. From July, 197" when ;he rent for June ought to have been deposited the respondent did not raise any objecs/ofi. The learned counsel for the appellant has reiied on Masood Hassau v. Muhammad Saeed Khan (PLD 1965 l.ah. 11), where the landlord did not take objection to the default for more than one ear, it was held to have been waived. Referring to various authorities it has been held that "trie provision contained in clause {6} of section 13 by all means deal with private rights intended to mean for the benefit of the landlord only a;jd on general principle their aoplication may be waived by them". It^was turtner hdd that "by his failure to orina the default to the notice ot the couri tor a period of one year ths landlord should be deemed to have waived ins right to object in this behalf". In S. Y. Muhajir v. Msi. AishaJaroal (PLJ 1984 Kar. 172) where application for striking off ths defence ;or detauit in payment of rent was riled after two years, the right '° object was held !o irive beea waived. In Muhammad Shafi v. Allah Ditta (PLD 19oO kar. 623) a delay of 5 to 6 months in wringing to the notice of the Rent Controller the default committed bv ths tenant was not considered to be waiver by ths landlord mainly because he was a blind person and was persistently pursuing h:s application against the tenant. In Mohammad Bux etc. v. Abdul Majeed (PLJ 1974 Kar, 2) where the landlord was an old man of SO years and had submitted his application against the tenant tor striking off his defence within three months of the default having been committed, it was held that it did not constitute waiver. In S I. H. Zaidi -. M. Shnjaat lisraa (PLJ 1979 Lah. 544) where the landlord applied for striding oft the defence within five weeks of the dafauH. it was held that this delay will not amount to waiver. In JalaJ Din v. Azizuddin (PLD 1963 Lah, 436) after the order for oeposit ot rent was oassed the landlord accepted the rent directly from the tenant but no application for striking off defence was filed. However in argument the landlord's counsel contended that the defence should be struck off under Section 13 (6). This contention was repelled but the first appellate court struck off the defence. In Second Appeal it was observed that 'the conduct of the respondents in receiving rent from the appellants during the pendency of the case was also pleaded as estoppel against them. Of course there can be no estoppel against the provisions of a statute, but there is considerable force on the contention that as the provisions of section 13 (6) of the Ordinance are for the Deneat of the landlord, on general principle their application mav be waived by them." The observations made by Zafar Hussain Mirza J. in Muhammad Ahmad v Qamar Anwar Shaikh (PLJ 980 Kar. 140) may be of same relevance In this case rent in arrears were accepted by the landlord for which default had been committed and on the basis of which ejectment was sought It was contended that by accepting accumulated" rent for more than 38 months and in accepting the rent thereafter for more than a year, the land lord has waived the default. While distinguishing this case onfacts with Masood Husain's case it was observed thai it is not mere acceptance of rent but circumstances which were enumerated clearly show the conduct on the pan of the landlord/respondent leading to the inference that she had knowingly relinquished her right to eject the appellant, it was further held "the term waives' implies the intentional rehnquishment of a known right after knowledge of the facts. It implies the intentional forbearance to enforce right and necessarily therefore assume ihe existence of an oppor tunity for choice between the rehnquishment and the enforcement of the right." In none of the aforestated cases decided after 1972 the case of Bachi Bai v. Ghulam Abbas (PL!) 1972 Kar. 278) has been noticed, Dorab Pate! J, while dissenting from Masood Hussain's case observed, "as I hav;> pointed out earlier, a litigant's conduct might amount to waiver when it is coupled with an estoppel. But 1 do not see bow a landlord's delay in asserting his remedies under such section (6) can possibly create an estoppel or amount to election which is but another form of estoppel " In Masood Hus>ain's case reliance was placed on Vellayan Chettiar v. Govt. of the Province of Madras (PLD W7 P. C. 160) 'where it was held that the Government could waive its immunity under Section 80 CPC and that waiver could be inferred from tne circumstances. In Bachi Bai's case while referring to the Privy Council case it was pointed out that "in such cases waiver arises, not because of inaction by the defendant but because the provisions of the Civil Procedure impose a duty not to be silent. It is only because of this obligation not to be silent tnat the failure of a Government to plead its immunity under section 80 amounts to waiver. This principle can be extended to subsection (6) only if it expressly or impliediy imposes a duty on the landlord to take action and not to remain silent when a tenant has failed to comply with an order for deposit of rent." After examining the provision of sub section (6) the learned Judge observed, 'In my humble opinion, the subsection does not impose any duty on the landlord not to be silent, therefore it does not lend any support to the view that a landlord's delay in asserting ins remedy und'er this sub section would by itself amount to delay, therefore, with great respect, 1 am not able to follow the view taken in Syed Masood Hussain's case". And further that withdrawal of rent after the tenant's default will not, by itself, amount to waiver or land to an estoppel or election. Sub-section (6) of section 13 provides a summary remedy to a land lord if the tenant defaults to deposit the rent or arrears in terms of the order passed by the Controller. It has consistently been held that the defence will not be struck off unless the default is wilful!. When any default is alleged the Controller should give notice and opportunity to the tenant to prove the circumstances which prevented him from depositing the rent, According to rule laid down in Ghulam Muhammad Khan Lundkhor v. Safdar AH (PLD 1967 S, C. 530, default under subsection (6) which is avoidable can not be excused. Only defaults which are unavoidable or due to causes beyond the control of the tenant can be condoned or may not amount to wilful default leading to striking off the defence. It there-foie follows that unless allegation of default has been made by the land lord the tenant can not corae forward to explain the reasons for non-com pliance. Nor will the Controller embark upon an inquiry to determine whether any default has been committed and if so is it excuseable. Such. an inqiry is possible only in cases where the landlord agitates the con-Jc troversy before the Controller. In these circumstances if the landlord} wants to press in service the provisions of subsection (6) he should file application seeking relief under it, In my humble opinion in such circum stances (if I may say so with respect to the view expressed in Bachi Bai's case) there is an implied duty on the landlord to file such an application and not to remain silent over the matter. Subsection (6) provides a remedy to a landlord and unless he makes out a case of defa.uk Controller can not grant, that relief. Considering the matter from this point of view there can be no doubt that failure of the landlord not to make an application for striking off the defence for unreasonably long period will amount to waiver. From a perusal of these authorities it seems that where the delay in bringing the default to the notice of the Controller is for a period of one year or more, the courts have treated such delay as waiver on the part of the landlord to object to the default. Where the landlord withdraws the money and does not apply for striking off the defence for sufficiently long period, such delay will also constitute waiver. In the present case according to the appellant, the first default was committed in respect of the month of June, 3977 and the application under section 13(6) was filed on 3-3-1980 > s. almost after two years and about 9 months and in bet ween the respondent had withdrawn the money as stated above. This delay will constitute waiver. The impugned order is set aside and the appeal is allowed (SHR) Appeal allowed.
PLJ 1985 Karachi 114 PLJ 1985 Karachi 114 Present : syed ally madad shah, J Dr. ABDULLAH GHANGROAppellant versus Mst. TAHIRA BEGUMRespondent First Rent Appeal No. 1101 of 1982 (also 1102 of 1982), decided on 15-11-1983. Sind Rented Premises Ordinance (XVII of 1979) Ss. 16 & 21 RentDeposit ofOrder ofNon-compliance of DefenceStriking offPlea that rent regularly deposited in account of miscellaneous proceedings not substantiated Held : Deposit of rent having not been proved, appellants to be liable to have their defence struck off [P. II5J/4 (ii) Sind Rented Premises Ordinance (XVII of 1979)
Ss 16 & 21 RentDeposit ofOrder of Non-compliance of Effect ofNo explanation furnished for not depositing rent with Controller as directedHeld : Rent having not been deposited as per
orders of Controller, defence of appellants rightly struck off. [Pp. 116 & 118]B& C Mr. C. M. Qureshi, Advocate for Appellant. Mr, Abdul Sattar Finger, Advocate for Respondent, Date i- f hearing . 27-9-1984. judgment Both the appeals under Section 21 of the Sindnance, 1979 are of idemicai nature, involving questions of law. They are, erefore, disposed arisen from the following facts : 2. Dr. Abdullah Ghangro. the appellant in F. R. A. No. 1101/82. and Mr. Iqbal Sheikh, the appellant in F. R. A. No. 1102/82, are tenants of the respondent A/if, Tahira Begum in two separate tenaments in her building identified by No. 152-E. Block No. 2, P. E C H. Society, Karachi, at specified monthly rent. It is alleged that they made default in payment of rent from January, 1980. The Respondent filed against them ejectment applications under the provisions of the Sind Rented Premises Ordinance, '1979, on 12-1-1982. The applications were registered as Rent Cases No. 173/82 and 174/82 respectively. The appellants resisted the respective applications filed against them. During the pendency of the proceedings, the learned Second Senior Civil Judge/Controller, Karachi, made an order in each case, on 20 4-1982, for deposit of monthly rent from the month of May, 1982 on or before tenth of each calendar month, with further direction that the rent for the month of May, 1982 should be deposited on or before tenth of May, 1982. The order was not complied with. The respondent made applications under section 16 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). on 8-8-1982, for striking off the defence of the appellants. The appellants opposed the applications contending that they had deposited the due rent in the Nazarat in miscellaneous rent deposit cases within stipulated time and no default was committed by them. They filed photostat copies of some receipts. Report called from the Nazir indicated that no rent had been deposited in the account of the rent cases. The learned Controller held that the rent was not deposited in compliance with the orders dated 20-4-1982 and hence default was committed in deposit of rent and passed the impugned orders dated 13-9-1982 of striking off defence of the appel lants and directed them to vacate the premises within specified period. 3. It is not disputed that rent was not deposited in the account of either case for ejectment in accordance with the orders of the ontroller. The plea that the rent was regularly deposited in the account of mis cellaneous proceeding was not substantiated, Only photostat copies of some receipts were filed with objections against the applications for striking off defence. Neither the original receipts were produced nor any report A was obtained from the Nazir to prove that deposits were actually made in the account of Misc. proceedings. Having failed to prove that rent was deposited anywhere, the appellants were liable to have their defence struck off as envisaged under S. 16 (2) of the Sind Rented Premises Ordinance, 1979. 4. A question similar to that involved in these appeals was considered by the Supreme Court in Civil Appeal No. K-74 of 1981 (iM/S. . Yahya v. M/S. Nawab Abdul Malik,, reported in 1982 SCMR 1160). The facts of that case, briefly stated, were that the respondent therein had tiled ejectment proceedings against the appellant therein in respect of a Shop No. 48 situated iu Dada Bhoy Chambers, M, A. Jmnah Road , Karachi , on the ground of default in payment of rent etc. The Rent Controller passed a tentative rent order, on 21-8 1971, directing that the rent for the month of August, 1971 should be deposited before 15th of September, 1971 and future monthly rent should be deposited before 13th of each calendar month, But the rent was not deposited as directed. The respondent in appeal before the Supreme Court filed an application under Section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1969 that the order of the Controller had not been complied with and defence of the tenant (the appel lant before the Supreme Court) may be struck off. The application was resisted on the ground that monthly rent had been deposited with the Controller in the miscellaneous proceeding (or deposit of rent of the premises. The learned Controller rejected that plea on the ground that no evidence was produced before him to the effect that the rent had been deposited in the miscellaneous proceeding and struck off defence of the tenant. First Appeal was filed before District Judge, Karachi , and it was heard by an Additional District Judge, Karachi . Particulars of the deposits made in the miscellaneous proceeding were furnished before the Additional District Judge. It was observed that the deposits in the miscellaneous proceeding were made on or after 15th of the succeeding month whereas the order by the learned Controller was for making deposits before 15th of the calendar month. The learned Additional District Judge did not consider such deposits as the compliance of the order of the Controller and dismissed the appeal. This view was upheld by the High Court in II Appeal No. 349/78 by the judgment dated 21-4-1981, reported as M/S. M. A. Yahya v. M/S. Nawab Abdul Malik (1982 S. C. M. R. 1160). The relevant part of the judgment of the Supreme Court reads as under : "It cannot be denied that the appellants were required to deposit monthly rent, during the pendency of the ejectment proceeding, after the tentative rent order for deposit dated 21-8-1971 in the account of the ejectment case. No rent was admittedly deposited in this account. No fault can, therefore, be found with the application of the respondent for striking off the defence on the ground of non-compliance of the order. It was for the appellants to produce proof in support of their plea that they had regularly deposited rent, in terms of the order, in Rent Case No. 1767 of 1970, even if this was regarded only as a technical non-compliance. However, inspite of opportunity no receipts were produced by them before the Rent Controller. Again when they themselves produced the deposits account in the 1st Appellate court, they did not attempt to offer any explanation for the defaults, which they must have observed in the account. On the contrary, their persis tent defence was that they had complied with the order, of the deposit." 5. The facts in these cases mentioned above are similar to those of the case referred to above, except that monthly rent in that case was deposited in the account of the miscellaneous proceeding but after the date specified by the Controller, whereas in this case the deposits of rent said to have been made in the miscellaneous proceedings have not been proved. Even if rent had been deposited in ths miscellaneous proceedings, there was no compliance of the order of the Controller, particularly in the circumstances that no explanation was furnished for not epositing the rent with the Controller as directed. 6, The learned Counsel for the appellants has cited a case Qadir Khan v. Mst. Kis>hwar Begum and others (PLJ 1983 Peshawar II) wherein the Rent Controller had directed the tenant to deposit arrears of rent in the court by a specific date and the tenant remitted arrears to the landlord by money order within the time allowed by the court. The Controller did not consider the remittance as compliance of his order and he struck off defence of the tenant and made order for his ejectment. It was held by a Singie Judge of Peshawar High Court that the remittance of the arrears of the reut by money order showed that the tenant had acted in good faith and it could not be said that he had failed to comply with the order of the Rent Controller and the order of striking off the tenant's defence was set aside. But the facts of these cases are different as no payment of rent was made to the landlord and the plea of deposit of rent in the account of the miscellaneous proceeding was not established. 1. Reference may be made to the following ease cited bv the learned counsel for the appellant : (;') Kalay Khan v. Jamia Masjid Akse Jamil (198.2 SCMR 88). (ii) Zafar Kuresbi and others i. Kbawaja Maqsoodu! Hasan (1982 SCMR 392). (Hi) Gulzar Ahmad Pirzada v. Additional District Judge, Lahore and 2 others (1982 SCMR 617) (/f) Msi. Bilqis Jahan Begum and others v Mst Khatoon Fatima (1982 CLC 45 h. (v) Akhtar Hussain; v. kabir Hussain ( 1982 CLC 702). (n) Mst. Rukhsana Begntn v. Mst. Farida (1.982 CLC 1298). (vii) Mahboob A!am Varsi v Syed Muhammad Shamim(1982 CLC I9t>8). 8. In the case of at Sr. No. (;), an order of striking off defence of the tenant on the ground of default in payment of rent due to negligence of the advocate and the tenant was maintained. But that is not the case here. In the case at Sr. No. (if), delay of one day in deposit of rent was not condoned. Similarly, in the case at Sr. No. (in), one day's delay in depositing rent was not condoned. No such question is involved in these cases. The cases at Sr. No. (/V), (vi) and (vii) also had different facts. In the case at Sr. No. (/v), the tenant was directed by the Controller to deposit arrears of rent within certain period and deposit monthly rent before specified date. The tenant weat to appeal aad obtained stay order against security. The appeal was dismissed Even then, he did not deposit the rent as directed by the Controller. His defence was struck off on account of non-compliance of the order of the Controller. The order of striking ofl the defence was upheld by the High Court. In the case at Sr. No. (vi), the question involved was whether an order for deposit of rent passed by the Controller under the provisions of Sec. 13 (6) of the S. U. R. Ord. 1959 was deemed to bean order under Sec. 16 (2) of the S. R. P. Ord. 1979, which has repealed the former Ordinance. That is not the question in these cases. In the case at Sr. No. (vii), defence of the tenant was struck off on account of non-compliance of the Controller for deposit of tentaive rent. The explanation furnished by the tenant that he had met with an accident and he had no intimation of the order of the Controller was not accepted in the circumstances of the case and the order of striking off his defence was oiaintained. The facts of these cases are quite different The case at Sr, No. (v) could advance the case of the appellants. The facts of that case were that the tenant made deposits of the rent in the Misc. proceedings between the same parties and it was urged that no default was committed in the compliance of the order of the Controller. His Lordship Mr. Justice Naeem-ud-din J, who decided the matter in II Appeal, made following observations : "Although 1 agree with the submission of the learned counsel that if the appellant had deposited rent by mistake or erroneously in proceedings between the same parties, though he intended to de posit the same in rent proceedings in which the order for deposit of the rent was passed that would not amount to wilful default in compliance of such an order but the cases cited the learned counsel are not on the point argued by him." However, the tenant could not succeed in appeal as it was found that he had not deposited rent for two months. In the cases in those appeals, the appellants represented that they had deposited rent in the Misc. proceedings between the parties but they did not establish that fact and consequently they were liable for having made default in depositing the rent in accor dance with the order of the Controller. 9, It would appear that the case against appellants fails in line with the case of M/S M. A. Yahya v. M/S. Nawab Abdul Malik State (1982 SCMR1160) mentioned at paragraph 4. They did not substantiate their plea that they had deposited rent in the account of the Misc. proceedings : and even if that were done, no explanation was furnished for not depositling the rent in the account of ejectment cases as directed by the Controller. JThere is no doubt that rent was not deposited as per order of the Control- ^jler and their defence was rightly struck off by the learned Controller. [Accordingly, both the appeals are dismissed with costs, 10. The appellants shall deliver vacants possession of the respective premises to the respondent within two months. (KMS) Appeals dismissed.
PLJ 1985 Karachi 118 PLJ 1985 Karachi 118 Present : tanzilur rahman, J SHAUKAT ALIAppellant versus SAKHAWAT HUSSAINRespondent First Rent Appeal No. 699 of 1984, decided on 22-7-1984. Sind Rented Premises Ordinance (XVII of 1979) -Ss. 16 & 24Rent Deposit ofDelay in Explanation forAgent Act and omission of Held : Agent, unless acting in excess of uthority conferred on him or omitting to act for reasons beyond his control, tenant to be vicariously liable for act or mission of his agentHeld further : Explanation that counsel appearing for tenant in lower court failed to deposit rent on due date to be o ufficient ground for condonation. [P. 120]/f (ii) Sind Rented Premises Ordinance (XVII cf 1979)
S, 16(2)RentDeposit ofOrder ofNon-compliance of Objection ofWaiver ofLandlord not in knowledge of actua! dates of default committed by appellant in depositing rent till filing of Nazir's reportHeld: Plea that landlord waived his right to seek relief under S. ib (2) of Ordinance by filing application after more than two years not to be allowed to be raised. [P. 12!]C (iii) Sind Rented Premises Ordinance (XVII of 1979)-
S, !6 (2) -RentDeposit oiWithdrawal by landlordEffect of Held : Default not to be (held to be) "not wilful' merely by withdrawal of amount deposited after due date. [P. 122]D (iv) Sind Rented Premises Ordinance (XVII o r 1979)
S. 16 (2)RentDeposit of Order of Non-compliance of Held : Period of time for making application under S. 16 (2) of Ordinance not to be limited. [P. 12ij£ (v) Waiver -Proof ofHeld : To prove waiver, there should be some clear and decisive act or condnct beyond mere silence Held further : Waiver by implication also to be competently inferred from circumstances of each case. [P. 121]S Mr. M. /. Memon, Advocate for Appellant. Date of hearing : 22-7-1984. judgment This is an appeal under Section 21 of the Sind Rented Premises Ordi nance, 1979, challenging the order of the learned Senior Civil Judge/Rent Controller, Shikarpur passed in Rent Case No. 24/1981 whereby the defence of the appellant was struck off for default in depositing the rent on the due dates and consequently ejectment order was passed against the appellant. 2. Briefly, the facts of the case are that the learned Rent Controller passed an order on 13-10-1980 directing the appellant to deposit the future rent on or before 10th day of every calendar month. The appellant de posited the rent for the month of April, 1981 on 14-5-81, though he was required to deposit the same on 10-5-1981. Again, the rent due for the month of June was deposited on 11-781 instead of 10-7-81. Lastly, he again deposited the rent for the month of,September, 1981 on 14-10-1981 instead of 10-iO-8l. In the first and third case there was a delay of four days whereas in the second case there was a delay of one day. 3. The respondent filed an application under Section 16 (2) of the Sind Rented Premises Ordinance, 1979 before the Rent ontroller on 18-1-1984. The report from the Nazir was called for. The parties were heard and the learned Rent Controller was pleased to strike off the defence of the appellant by his order dated 20th June, 1984, against which the appellant has now come in appeal. 4. The learned counsel admits that there were three defaults comrnitted by the appellant in depositing the rents on the due ates. In respect of the second default, referred to above, his contention 10-7-8! being Friday the rent was deposited en the follow,ni 1 .: regard to the other two defaults his contention is that there a delay of four days each in depositing the rents. The onation, as urged by him, is that the appellant had given learned counsel appearing for him in the lower court who fai the same on the due date. This simpiiciter, I am afraid, car, in law to be a sufficient ground for condonation uf delay a> the .iro^Unt is vicariously liable for the act and omission of his agent, mile;- vvwn have acted in excess of authority conferred on his c-t omitted t" act te-r reasons beyond his controi. I may refer to the case o; iiamdard Labaratories (Waqf) Pakistan v. Shah Syed Hussain Naqvi (1980 C, L, C. 680). It is, however, pertinent to note that metrier an affidavit of the advocate has been filed nor any reason has been staled for the alleged failure on the part of the advocate for non-deposit of rent on the due date. 5, The Supreme Court in the case reported as Muhammad I/mar i 1 . Aiysha Aziz (i981 S. C. M. R. 276) observed that each day's delay in the deposit of rent had to be explained and justified. In another case reported as Zafar Qurtshi and others v. Khawaja Maqsoodul Hassan etc (1982 S. C. M. R. 392) the Supreme Court was again pleased not to interfere with the order of the Rent Controller in a case of default even for one day. It was, thus, observed "The learned counsel for the petitioner next contended that there was only one day's delay in deposit of rent for the month of October, 3974, and that delay occurred as the rent had been deposited on the 16th November, instead of 15th November. This contention overlooks the fact that in reality, ths petitioner was given one full month or at least 15 days to deposit rent of the previous months. As such if the petitioner deposited the rent one day after the time fixed, the delay in fact is much more than one day. In any case it was a matter of discretion with the learned Rent Controller, and we do not consider it a fit case to interfere wtth his exercise thereof." 6, The learned counsel further contended that the application for striking off the defence was made by the Respondent after about two and a half year. It amounted to waiver of his right and he is precluded from claiming relief under section 16 (2) of the Sind Rented Premises Ordi nance, 1979. Admittedly, the last default was committed by not deposit ing the rent due for the month of October, 1981 and the application under section !6 (2) for striking off the defence was made on 18-1-8}, In support of his contention, the learned Counsel reiied on a Single Bench ruling of this Court reported as S. Y. Muhajir v. Mst. Assha Jamal (PLJ 1984 Karachi 172), wherein the delay in filing the application for siriking off the defence was held to be a waiver of right. 7, "Waiver" has been defined in Black's Law Dictionary,, Fifth Edi tion as "The intentional or voluntary relmquishment of a known right, or such conduct as warrants an inference of the reliuquishment of such right, or when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full respect of the second default, referred to above, his content;5 10-7-81 being Friday the rent was deposited en the folio\v. regard to the other two defaults his contention is that there a delay of four days each in depositing the ren onation, as urged by him, is that the appellant had given learned counsel appearing for him in the lower court who the same on the due date. This simpliciter, I am afraid, in law to be a sufficient ground for condonation of delav is vicariously liable for the act and omission of his agent, i - have acted in excess of authority conferred on his or onmted t act '..- reasons beyond his control. I may refer to the ca;e o; Hamdurd Labjratories (Waqf) Pakistan v. Shah Syed Hussain Naqvi (!980 C. L. C oSJ). It is, however, pertinent to note that nicther an affidavit of tb: a,l.\ija:e has been filed nor any reason has been stated for the alleged failure on the part of the advocate for non-deposit of rent on the due date. 5. The Supreme Court in the case reported as Muhammad Umar Aiysha Aziz (i98l S. C. M. R. 276) observed that each day's delay in the eposit of rent had to be explained and justified. In another case reported as Zafar Qnrtshi and others v. Khawaja IVfaqsoodul Hassan etc, (1982 . C. M. R. 392) the Supreme Court was again pleased not to interfe r e ith the order of the Rent Controller in a case of default even for one ay. it was, thus, observed "The learned counsel for the petitioner next contended tiut there was only one day's delay in deposit of rent for the month of October, 1974, and that delay occurred as the rent had been deposited on the 16th November, instead of 15th November. This contention overlooks the fact that in reality, the petitioner was given one full month or at least 15 days to deposit rent of the previous months. As such if the petitioner deposited the rent one day after the time fixed, the delay in fact is much more than one day. In any case it was a matter of discretion with the learned Rent Controller, and we do not consider it a fit case to interfere wtth his exercise thereof." 6. The learned counsel further contended that the application for striking off the defence was made by the Respondent after about wo and a half year. It amounted to waiver of his right and he is precluded from claiming relief under section 16 (2) of the Sind Rented Premises Ordi nance, 1979. Admittedly, the last default was committed by not deposit ing the rent due for the month of October, 1981 and the application under section 16 (2) for striking off the defence was made on 18-1-84. In support of his contention, the learned Counsel relied on a Single Bench ruling of this Court reported as S. Y. Muhajir v. Mst. Assfaa Jamal (PLJ 1984 Karachi 172), wherein the delay in filing the application for siriking off the defence was held to be a waiver of right. 7. "Waiver" has been defined in Black's Law Dictionary,, Fifth Edi tion as "The intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the reliuquishment of such right, or when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do some thing the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it. "Waiver" is essentially unilateral, resulting as legal consequence from some act or conduct or party against whom it operates, and no act of party in whose favour it is made is neces sary to complete it." 8. The "Waiver", therefore, is either express or implied. Waiver by implication can be inferred from the circumstances of each case. How ever, to prove waiver there should be some clear and decisive act or con duct beyond mere silence. Reliance is placed on the uthority of the Supreme Court in Muhammad Saleh v. Muhammad Shafi (PLJ 1982 SC 127) herein it was heid that "omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandon ed". The Supreme Court in the case, referred to above, held that "in order to establish 'waiver' by conduct" it must be shown, firstly, that the person entitled to the right had knowledge of the breach thereof, and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to take objection or to take action due to ignorance of the breach of one's right cannot be said to give rise to 'waiver' by conduct". 9. The learned counsel for the appellant has shown me, during the course of his submissions, a copy of the application moved by the respon dent under section 16 (2) of Sind Rented Premises Ordinance, 1979 which, though makes a clear allegation that the appellant had committed default in depositing rent, but was silent as to the relevant dates of the alleged defaults. This goes to show that the respondent was not aware, even on the date of making the application of the actual dates of default committed by the appellant in depositing the rent due, which were subsequently prov ed on the Nazir's report having been brought on record. In these circum stances, the appellant cannot be allowed to raise the pha that the appel lant had, by his conduct in filing the application after more than two years, had waived his right to seek relief under section 16 (2) of the Sind Rented Premises Ordinance, 1979. 10. In the case relied on by the learned counsel for the appellant, referred to above, the learned Judge, while condoning the delay in deposit ing rent on the due date had observed that "for two years the landlord/respondent was sleeping over the default or even if he did not know about the default yet from the circumstances that he had withdrawn the amount so deposited by the appellant, it appears that the default is not wilful one and it should be condoned," D With respect, I am not inclined to agree with the view taken by the learn ed Judge in the above case. Merely withdrawing the amount so deposited (after the due date) by the appellant the default cannot be held to be "not wilful." The default being wilful or otherwise is a consideration which rests with the act or omission of the tenant depositing the rent. Withdrawal by the landlord of the amount deposited by the tenant after the due date to be a'waiver by conduct', would have been relevant to a case where the landlord waives his right to 3 forfeiture of a lease by accepting rent which accrued due after the breach of a covenant causing the forfeiture having become known to him, as provided under Section 114 of the Transfer of Property Act. 1882. But here the parties are faced with a different situation. The question is that of taking an action in the court by the Respondent under the provisions of Section !6 (2) of the Sind Rented Premises Ordinance, 1979 for the default committed by the Appel lant which was not in his knowledge till he made that application 0:1 18-1-1984 and on that date too he had an imperfect knowledge in as much as he did not know the actual dates of default. In any case, it has not been alleged or stated before roe that the resoondent had withdrawn she amounts of rent deposited by the appellant after he had the knowledge of the alleged default, whicrt amounted to waiver Therefore, in the circum stances of the case it cannot be said that the Respondent by withdrawing the amount of rent deposited in the Court had waived his right of filing application under Section 16 (2) of the Sind Rented Premises Ordinance 1979. or that his right was affected by the delay of over two years in mak ing the said application. It may further be stated that the Sind Rented Premises Ordinance. 1979 does not limit any period of time for making an application under Section )6 (2). 11. In this view of the matter, I find no force in this appeal which is dismissed in limine. However, at the request of the learned counsel, I grant two months time for handing over the vacant possession of the premises to the respondent, subject t>» payment of rent by the appellant regularly. The appellant may have his remedy against the learned counsel who is alleged to have failed to deposit the rents within the due dates, if he is so advised. (1DK) Appeal dismissed.
PLJ 1985 Karachi 122 PLJ 1985 Karachi 122 Present : sajjad ali shah, J MUHAMMAD JUMMANAppellant versus MUHAMMAD BACHALRespondent 1st Rent Appeal No. 20 of i980, decided on 19-5-1984. (i) Urban Rent Restriction Ordinance (W. P. Ord, VI of 1959j -Ss. 13(5) & 15RentDeposit ofNon-compliance ofDefence Striking offOrder of Challenge toNo justification shown r»y tenant for non-compliance of order of deposit of tentative rent Held ' Order of ejectment passed in consequence thereof to be main tained. [P. C (ii) Urban Sent Restriction Ordinance (W. P. Ord. VI of 1959) S. 13 (6)Tentative rentDeposit of - Order of Decision on preliminary issue not challenged by tenant Tenant even not raising any ejection before Rent Controller against passing of tentative rent order three months after decision on preliminary issueHeld Tenant not to simply refuse point blank to comply with tentative rent order. [P. (iii) Urban Sent Restriction Ordinance (W, P. Ord. VI of 1959) S, 13 read with Displaced Persons (Compensation & Rehabilitation) Act (XXVIII of 1958)S. 30Notice to tenant-Requirement of Repeal of ActEffect ofHeld : Service of notice under S. 30 of Displaced Persons (C & R) Act not to be necessary after repeal of Act on 1-7-1974. [P. 1241/1 PLJ 1982 Lab. 552 ; 5984 CLC 911 & PLD 1984 Karachi 135 rtl. Mr. Mazhar AH B Chauhan Advocate for Appellant. Mr. Matloob Hassan Siddiqui, AdvocateJor.Respondent. Dute of hearing : 10-5 1984. JUDGMENT This first rent appea! arises from non compliance of tentative rent order, in the result whereof defence of appellant/tenant has been struck off and final order if ejectment has been passed by Kent Controller, SfaaiitJadpur, on 22-12-79 which is impugned in this appeal. 2. Briefly stated the relevant facts are that respondent/landlord filed ejectment application under section 13 of the West Pakistan Urban Renl Restriction Ordinance, 1959, on 1-7-71 ciauamg ejectment on the ground of default in the payment of rent. The rate of rent is Rs. O/-. Written statement is filed by the tenant in which relationship of landlord and tenant between the parties'is denied and the tenant claimed non-service of notice under section 30 of the Displaced Persons Act. Preliminary issues were framed and decided vide order dated 31-5-79, ubsequently tentative rent order was passed on 30-8-79 in presence of both the parties in which directions were given for deposit of arrears of rent: to the tune of Rs. 4020:- for rent from uly I9o8 to August 1979 within two months from the daic of that order. The arrears had ccumulated due to non payment of rent for II years. There was aiso further direction in the tentatative rent order for deposit of monthly rent before (4tli of each succeeding month. The tenant did not comply with this tentative rent order in conse quence an application was iled by the landlord for striking off defence and subsequently after hearing both the parties the learned ent Controller has passed order of final eviction agasnst which the appea! has been filed. 3, The contention raised by Mr. Mazbar Aii Chauhan, learned counsel for the ppellant/tenant is that the tentative rent order was not complied with for the simple reason that the earned Rent Controller had omitted to decide prelim'nary issue in respect of non-service of otice under section 30 of the Displaced Persons Act, which is an illegality hence the tentative rent rder was not binding upon hsra. The learned counsel has referred me to the order passed by the ent Controller oa 31-5-79 ta which there appears to be a mistake, which is typographical inasmuch s the learned Rent Controller has stated that Mr. Muhammad Ali Chauhan has conceded hat relationship of that of laadiord and tenant exists between the parties, aicti is not actually corr:ct according ta ihi Isarasd counsel who has submitted that on the other hand it as contended that there was no relationship of landlord and tenant bstwjen toe parties, Oa the her hand Mr. Matloob Hasan Siddiqi has submitted that before the preliminary issues ere ecided both the parties were examiasd by the Rent Controller and the tenant in his evidence has ategorically admitted thai he had surrendered bis rights to the landlord «ad further dmitted execution of surrender deed. Mr. Matloob Hasan has further submitted that in the order passed by the learned Rent Controller deciding prelimi nary issues reliance was placed on the admission of tenant made by him in his evidence rather than written statement. It is correct that the learned Rent Controlier has stated in the said order that issue with regard to the service of notice under section 30 of the Displaced Persons Act would be decided later on at the time when the issue with regard to default was taken up for consideration. In this context Mr. Siddiqi has submitted that in any case after the repeal of the Displaced Persons Act on 1-7-74 service of notice under section 30 of the D. P. Act was not necessary in view of section 6 of the General Clauses Act. Jn support of this proposition reliance is placed by the learned counsel in PLJ 1987 Lahore 552, 1984 |CLC 911, and the latest decision reported in PLD 1984 Karachi 135. In jthe circumstances I hold that service of notice under section 30 of the D. P 'Act was not necessary. 4. Another fact which has impressed me is that at the time when pre liminary issues were decided vide order of Rent Controller mentioned above tenant was represented by his counsel who was heard and in whose pre sence the said order was passed. If the tenant really had any grievance against this order, he would have raised hue and cry and he could have filed some application before the Rent Controller for review on the ground that there was mistake in the order. He did not do so and thereafter tentative rent order was passed on 30-8-79, which was after three months of the order passed on preliminary issues, stil! no objection was raised by the tenant before the Rent Controller and defect in the order dated 31-5-79 was not brought to the notice of the Rent Controller. In the circumstances it was not open to the tenant to have simply refused point blank to comply with tentative rent order which was tentative in nature. For the facts and reasons stated above I am of the view that no justi fication has been shown by the tenant for non compliance of ths tentative rent order hence order of ejectment passed in consequence thereof is here by maintained and the appeal is dismissed with no order as to costs, The appellant is directed to give vacant possession of the disputed premises to the landlord within two months from today. (IDK) Appeal dismissed.
PLJ 1985 Karachi 124 PLJ 1985 Karachi 124 Present : syed haider ali pirzada, J GEORGE LEVI and Another Appellants versus Mst. ZAKIA SULTANA -Respondent FRA Nos. 445, 446 & 447 of 1983, decided on 9-1-1984. (i) Sind Rented Premises Ordinance (XVII of 1979) --- S. 14 Vacant possession -Delivery of Widow Personal require ment of Held : Application unless shown to be filed with some ulterior motives, landlady to be ordinarily (considered to be) judge of her needs Held farther : Rent Controller normally to give weight to statement on oath made by landlady in that behalf and not ordinarily to become judge of her needs unless desire of landlady be shown to be not genuine. [P. 127]^ (ii) Sind Rented Premises Ordinance (XVII of 1979)
S, 14Vacant possessionDelivery ofWidowPersonal require ment of Held : esire to reside or to carry out one's business in one's own premises being natural desire of all uman beings, claim of requirement by landlady for personal use and occupertion to be considered to be true in normal circumstancesSuch rebuttable resumption, however, to be isplaced by acceptable evidence. [P. \21}B (Hi) Sind Rented Premises Ordinance (XVII of 1979)-
S. 14Vacant possessionDelivery ofWidowRequirement of Held : Ejectment on ground of personal requirement by landlady under S. 14 of Ordinance not to make it necessary for Rent Control ler to go into question of bonafide and mala fide. fP. 12«]C (iv) Sind Rented Premises Ordinance (XVII of 1979)
S. 14Residential & commercial premises Requirement of Held : Mere use of premises for residential purposes not to change nature of building. [P. 128j£> Mr, Zia Pervaz. Advocate for Appellant. Mr. Muhammad Jamil, Advocate for Respondent. Date of hearing : 16-11-1983. JODOMBNT These First Rent Appeals Nos. 445 of 1983, 446 of 1983 and 44? of 1983 are directed against the orders dated 6-4-1983, passed by the second Senior Civil Judge/A. S. J. & Rent Controller, Karachi , whereby he accepted the ejectment applications of the Respondent and directed the appellants to vacate and hand over the possession of the premises within sixty days from the date of the orders. The question of law by these appeals to be one of first impression. The three appeals are directed against a common order passed in three different ejectment applications which were started against three different tenants with respscs to three different ejectment cases. But all the three cases were started by the respondent who is the owner of Commercial Building known as Al-Aziz Building . 2. The facts which give rise to these appeals are that the widow respondent who is owner of shop premises of Al-Aziz Building on com mercial Plots Nos. 677-678, Commercial Area, P.E G.HS. Karachi, The Respondent filed ejectment applications being 2485/82, 3294/82 and 3295/82 that she is & widow as her husband died on 14-6-1981 and she is a landlady and the appellants are her tenants in respect of shop Nos. 3, 4, 5 and 6 of the said building on ground floor. She is a qualified tailor and dress-maker and has got sufficient experience of cutting, sewing and stitching and dress making and passed such examination held by the department of industries, Punjab for such Diploma, She requires these shops for her bonafide use to start her own business of ready-made garments and as such needs the demised shops for setting up/establishing the same. The shops are situated in the commercial area and are quite suitable to meet the requirement of the applicant/respondent and to provide a source of income. Consequently she served notices to the occupants of various tenements including the notice dated 4-1-1982 to the appellants Or, 14-5-1982 the respondent moved ejectment application for ejectment of the said appellants under lection 14 of the Sind Rented Premises Ordinance 1979 in the Court of Ilnd Seoior Civil Judge/Rent Controller, Karachi, which were registered as R, C. Nos, 2485/82, 3294/82 and 3295/82. Each of the appellants filed the reply statement within the meaning of section 14 of the said Ordinance and 3 the other grounds as stated in the written statement challenging the banafide of her need that she disqualified herself by letting out a flat on first floor without exchanging the same with one of the three tenants/applicants vis. Mr George Lcvi who has residential accommodation on the ground floor and aiso she let out one shop premises to one Haji Rafiq after the sasae was vacated by Paki-Pakai Roti Corporation after the death of her husband. She is also not entitled to avail the benefit of section 14 as she is the owner of other building and grown up children and she is owner of !/>th share in the building and she is a landlady of 56 years of age and did not require the premises in question for her own business for carrying her livelihood. 3, The learned Rent Controller framed the following Issues : 1, if the applicant is a widow ? 2, If she has served a notice under section 14 (I) of the Sind Rented Premises rdinance on the opponent ? 3, If the applicant is in occupation of any commercial building to run her business owned by her in any locality '' 4, If the premtees in case has been let out to the opponent after her becoming widow ? 4. The respondent examined beresetf in support of the application. Each of the ppellants examined himself, The learned Rent Controller after recording the evidence of he parties and hearing the arguments of the learned counsel for the parties, allowed the pplications by separate order dated 6-4-198,3 and he directed ail the three ants/appellants to vacate and hand over possession of the shops in question to the respondent within .sixty days from the date of the order-; passed in each of the ejectment applications. 5. The tenants/appellants being aggrieved by the impugned orders have preferred three separate appeals on the grounds mentioned in the Memo, of Appeals. 6. I have heard Mr. Zia Pervai^ learned counsel for the appellants in all the three appeals and Mr, Muhammad Jamil, learned counsel for the respondents in all the three appeals. Toe learned counsel for the appellants Mr, Zia Pervaiz has raised the following contentions in support of these appeals, (/') The respondent has failed to prove bona fide requirement. (ii) The learned Rent Controller has misread the evidence on record. i 12. ! an of the view that ejectment on the ground of personal C (require me nt by aodiady u/s 14 of the Ordinance does not make it necessary for the Rent Controller to go into the question of bonafide and malafide and in this respect in case of Wall Maaaatnad v. Mst Hameeda (P.L.D. 1981 Karachi 794) it was pointed out that the:;s was difference in the language employed in section 14 and 15 of tu; Ordinance. In Wali .Muhammad \ Mst. Haoieeda a decisioa of this Court referred to above also it was held that the question of bonafide cannot be investigated into an application under Section 14 in view of the difference in the language employed in sections 14 and 15 (i) (viii). 13. The view taken by me get supports from the decisions of this Court (i) K. P. Moidoo and another v. Mst. Noor dehan Begum (PLJ 1983 Karachi 420), (ii) Abdu! Rasbid v. Mohammad ZaStaria Khan (1983 C.L.C. 1304) and (iii) Mst Sardar Begnm v. Hasina Jan (1983 C.L.C. 3258). The contention has no force. M, The learned counsel for the appellants has attacked the order of the Rent Controller on the ground that the same is against law and evidence on record. In support of his argument that the findings of the learned Rent Controller is against law and not based on evidence, learned counsel took me through the evidence on record. I had also the advantage of the assistance rendered by the learned counsel for the Respondent. 15. In order to appreciate the submission made by the learned counsel I ould refer to the evidence of Zakia Sultana P.W. 1 she is the landlady and widow. In support f the plea of personal requirement, the said witness stated that she is the landlady of Al-Aziz uilding situated on Plot Nos. 677 and 678. Her qualifications were not challenged in crossexamination, Even the certificates were exhibited without any objection by the appellants. he perusal of record shows that the learned Rent Controller had taken into onsideration the evidence on the record to the effect that the respondent is diploma holder n tailoring, cutting and sewing the documentary evidence on record supported by oral vidence fully justified the conclusion that the respondent requires the premises for establishing eady-made garments. 16. I have been taken through the evidence of the witnesses as also the judgment of the rial Court. I find that the said findings are based upon proper evidence and in my view those indinge arc correct. 1 cannot say that the said findings are either perverse or without ny basis. She admitted in cross examination that the building situated on two plots. Even he appellant himself in his cross-examination admitted that the building consists of six enements and the building in which the tenants situate is a commercial building in ommercial rea. 17. George Levi, one of the appellants, had also admitted that the pre mises in his ccupation are on the ground floor of the commercial building. jl am of the view that mere use of he premises for residential use will not d [change the nature of the building. It is also admitted in evidence that (the respondent does not own any commercial building but she is residing in a residential building. There is no bar for her to apply u/s 14 of the Ordinance. I am also supported in my view with a decision in the case of this Court Syed Aii Hussain Kizvi i>. Mst. Muzaffar Jeban (P.L D. 1983 Karachi 410) and in the case of Muhammad v. Muhammad Sharif and others reported in 1983 S.C.MLR, 180, The learned counsel for the appellants has contended that she is not a full owner ut entitled to l/8th. share in the building On the other hand, Mr. Muhammad Jamil has contended that, he is the full owner of the premises and in support of his argument be placed reliance on decisions in cases of st. Safia Bai v. Abdul Sattar reported in P.L.D. 1983 Karachi 419 and also on section 2 (f) of the Siod Rented remises Ordinance 1979. Section 2 (f) of the Ordinance provides that the "landlord" means the owner of the premises and includes a person who is for the time being authorised or entitled to eceive rent in respect of such premises. This question has been considered by my learned brother Z C. alliani J., in the case of Mst. Safia Bai v. Abdul Sattar reported in P L.D. 1983 Karachi 419 in which my learned rother has come to the conclusion after giving cogent reasons. I am in respectful agreement with this decision f y learned brother Z. C. Valliani, J. for the reason given by him in his judgment reported in P.L.D. 983 Karachi 419. 18. For the reasons stated above I find that the order of the learned Rent Controller is based upon proper ppreciation of evidence and is sup sorted by material on the record. The learned counsel for he appellants could not point out any such defect as mentioned above in the orders under appeals. I, therefore, find no justification in the above appeals aud these are therefore dismissed but I grant four months' time to vacate the premises on the conditions that each of the appellants shall continue to deposit rent in terms of the learned Rent Controller's order. However, in case they will make default the respondent shall bs entitled to file execution before the expiry of the above mentioned four months' time and the writ of possession will be issued without any notice to them, (KMS) Appeali diimUied.
PLJ 1985 Karachi 129 PLJ 1985 Karachi 129 Present: munawar ali khan, J Dr. BURJOR M. ANKLESARIAAppellant versus Mrs. ZENOBIA and AnotherRespondents FRA No. 1181 of 1982, decided on 24-4-1984. Siatf Rented Premises Ordinance (XVII of 1979)
S. 16 (2)Deposit of rent-Order of-Non-compliance ofEffect ofHeld : Tenant alone to ensure compliance of tentative order (of deposit of arrears of rent) within timeAppellant in case depositing rent in another court in favour of previous landlordSuch amount, however, not got transferred to court of Rent Controller within timeHeld : Tenant having moved leisurely and not bothered to show vigilence in getting amount transferred within time, appeal against order of striking off his defence to be withoat merit, [P. 132}A &B Mr. G. M. Dasfagir, Advocate for Appellants. Mr. Ikram Ahmad Ansari, Advocate for Respondents. Date of hearing : 23-4-1984, judgment This appeal has arisen from the order of the XII Senior Civil Judge and Rent Controller, Karachi, dated 11-11-1962, whereby the defence of the appellants was struck off and he was directed to hand over the vacant possession of the demised premises within ou days of use order. Briefly stated the facts of the case are that the appellant has been occupying the ground floor of the bungalow on plot No." 18, S. No, L M. 24. situating in Parsi Colony on M.A. jjnnah Road, Karachi , as tenant on monthly rent of Rs. 85/- for last 51 years. The respondents who claim to be the owner-landlords of the disputed premises fiicd ejectment application on ^8-5-1976, seeking ejectment of the appellant from the said premises on the ground of default in payment of rent from January, 1975 to April 1976. The appellant resisted the application, denying the existence of relationship of landlord-tenant between the parties. TLe learned Real Controller decided the question of the relationship as a preliminary issue, holding that the relationship of landlord tenant exists between the parties, The decision of the Rent Controller with regard to the relationship was accepted as no appeal was preferred from the said decision. During pendency of the rent proceedings, the learned Rent Controller passed a tentauve order dated 17-iO-i979 whereby the appellant was called upon to deposit in Court the rent arrears from January, 19 15 to September, 19/9 at t&e rate of Rs. 85/- p.m. amounting to Rs. 4930 before 20th December, 1979 and future monthly rent starting from October, 1979 before 15th of each calendar month. As the appellant failed to comply with the above order, the landlords moved an application under S. 16 (2) of the Sind Rented Primises Ordinance, 1979 for striking off the defence of the appellant-tenant. After considering the objection filed by the appellant and the Nazir's report, the learned Rent Controller by the impugned order referred to above struck off the defence by the appellant. Hence this appeal. After hearing the learned counsel for the parties at great length, the appeal was dismissed by short order datea 23-4-W84 with no order as zo costs. However, at the request of the learned counsel for the appellant it was directed in the said short order that the appellant will hand 'over the vacant possession of the disputed premises to the landlords within four months of the order subject to the condition that he will centime to deposit monthly rent regularly in the Court and in the case of default in this regard, be will be ejected from the disputed premises without further notice. Following are reasons in support of the short order. As disclosed in the Nazir's report ; though the appellant has made compliance of the tentative order relating to future monthly rent by de positing rent ot each month regularly in. time, he has failed to deposit the rent arrears to the tune of Rs. 4930/- before 20th December, 1979 as required by the said order. Accordingly, the learned Rent Controller held the appellant to have defaulted in depositing the rent arrears before the target date and on that ground struck off hii defence. The learned counsel for the appellant has taken a serious exception to the impugned order, contending that the learned Controller has erred in holding the appellant responsible for non-compliance of the tentative order. According to bun the appellant has been regularly depositing the rent in Court in the name of previous landlord and as soon as the tentative order was passed, the appellant approached the Rent Controller in whose Court he has been depositing rent with prayer that either he may be allowed to withdraw the deposited amount or it may be transferred to the Court of the Rent Controller where the ejectment proceedings are pending against him, The Seamed counsel submitted that, on the application of the appellant the learned Rent Controller passed order on 17-12-1979 transferring the deposited rent to the Court of Rein Controller where the ejectment case was pending. He further submitted that the appellant was not to blame if the file containing that transfer order was not sent in time to the Court concerned because no one can be made to suffer for the Court's wrong act. in this connection, he placed reliance on Inshtllah Begum v. Sbamim Akhtar (1983 CLC 2853} wherein the learned single Judge applying the maxim "an act of Court shall prejudice no man", beid : "'i am, therefore, of the view that the tenant couid not be penalized for his default when there was a clear direction issued to her by the Rent Controller that she may deposit rent from the month of January onward," There is no dispute with the maxim that act of Court shall prejudice no man. But the maxim is not applicable in the instant case. It was ths duty of the. appellant/tenant to make compliance of the tentative order. When he was caiied upon by the satd order to deposit rent arrears amount ing to Rs. 4930 ; '- before 20-62-1979, perhaps he had two options befoie him : first, he should have straightaway deposited the said amount in cash ; second that he shjuld have got the rent deposited by him in the aaaic of the previous landlord in another Court, transferred to the Court where ejectment case was pending While exercising his option he was to make sure that in compliance of the tentative order the deposit was made within time. It appears that the appellant chose to have the rent deposits made by him in the name previous landlord transferred from the Court where the deposits were made to the Court where ejectment case was penduig. If he pursued that coarse, it \vas for him to ensure that the money stood physically transferred to the Court concerned. His duty was by no means over after merely the transfer order was passed by the Court. in which the money was lying. He should have seen to it thai in pursuance of the transfer order, the money was actually sent to and credited in the Court where ejectment case was pending, Even if the physical transfer was not possible in time the appellant should have obtained a copy of the transfer order and produced the same in compliance of the tentative order In the Court concerned. But there is no indication that any such effort was made by the appellant, The learned counsel for the appellant contended that since the transfer order was passed or 17- 12- 1979, it was -not practicable to obtain its copy and produce the same in the Court concerned within three days left a! the disposal of the appellant. It would appear that the tentative order was passed on 17-10-1979 whereas the appellant made application for traasfej of rent deposits after aearlv one month, i.e., 16-11-1979. Again ooe month was taken by the Court to pass the transfer order on 17-12-1979. Had the appellant been vigilant, he could have secured the transfer of the deposited amount well within time. It seems he took the matter lightly. On one hand he himself woke up late to move for transfer of the amount and on the other hand he did not make extra effort to see that the Court had disposed his application for transfer of the money expeditiously. Thus the appellant himself was to blame if the money did not reach the Court concerned by the deadline fixed in the tentative order. It was none of the Court's act which had prejudiced the appellant. It was the appellant's headache to ensure, that compliance of the tentative order was made in time. If he thought that it was not possible or practicable to have money deposited in another Court transferred in time to the Court where the case was pending against him, he should have exercised another option open to him namely that instead of having the said money transferred he should have arranged to deposit the amount in question in cash in compliance of the order. Apparently, .he showed no such anxiety in complying with the tentative order. The learned counsel for the appellant next contended that the learned Rent Controller made undue haste in passing the impunged order and proper opportunity was not given to the appellant for bringing evidence on record to show why despite the transfer order having been passed the money could not be transferred to the Court concerned. In this connection, he has relied upon Messrs. Pan-Islamic Steamship Co. Ltd. v. S. M Naqi and another (1982 CLC 1944). I am afraid this authority does not help the appellant. In fact, there was no need to bold enquiry in the instant case to know the reason why the money deposited in another Court could not be transferred to the Court concerned in time. As has been pointed out above, it was the responsibility of the appellant alone to ensure compliance of the tentative order within time. He had various courses open to him for making due compliance of the said order. But as has been stated above even in the matter of transfer of the amount from one Court to another, he obviously moved leisurely and did not bother to show vigilence in getting the amount transferred within time. In view of the above discussion, the appeal being without merit, was (dismissed as mentioned above. (KMS) Appeal dismissed.
PLJ 1985 Karachi 132 PLJ 1985 Karachi 132 Present: salegm akhtar, J Mst. SAFDARI BEGUM and 2 OthersAppellants versui AMIR ALI TABREZI-Respondent First Rent Appeal No. 733 of 1983, decided on 23-9-1984. (i) Limitation Act (IX of 1908)
Ss. 3 & 12 read with Sind Rented Premises Ordinance (XVII of 1979)~S. 21Time requisite for obtaining .copy--Exclusion of respondent is bonafide. The maio ground of attack by the learned counsel for the appellant Is that during the pendency of the caee the front portKH 1 - of the house having accommodation indentical to the premises in possession of the appellant has been iet out, The respondent has not denied letting out but he has explained that the said ground floor portion is not identical to the disputed premises and secondly he has given certain reasons for his preference and choice for th.- disputed premises. The accommodation in bolfa the froot and disputed premsis consist of two bed rooms each. The extra advantage as explained by the respondent is that in the disputed pre mises there is a separate entrance with open space in which the law ha been Laid. The reasons for his preference have been set out ia respondents affidavit of evidence as follows : JUDGMENT "That the accommodation of rented premises is suitable to me for ovy requirements and and needs because it is on the ground floor and moreover it is comprised of two bed rooms with attach ed basil one drawing-dinning and one kitchen toge'her with lawn and in order to lead my happy and comfortable life it is sufficient for my personal bonafide use in good faith alongwith my wife there. Apart from above the rented premises accommodation hai separate and independent gate white the front one which is occupa tion of my another tenant who is K.. E. S, C. Engineer so it has got common entrance gate which cannot create peaceful atmos phere for me. However the premises ia question required by me are having its south and west opea with doors and windows allow ing the natural pieasarst breeze. 'The premises in question are having also good lawn for my use to maintain ray health whereas it is also free from the nuisance of traffic noise as it is away from the public road," This statement lus not been challenged in cross-examination. In fact the reasons for preference have gone unchallenged. The learned Controller while deciding thii issue has observed that it is the prerogative of the landlord to choose she house in which he wants to reside and further that the question should have been asked from the respondent that the front portion was not suitable f'xr his residence and that as such question was not asked inference is to be drawn in favour of the respondent. In the facts and Circumstances the first observation made by the learned Controller is not correct. The legai position is that a landlord has a prerogative to choose any one of the houses he owes for his bona fide need and occupation provided none of them is in his occupation, But if the landlord is in possession of a premises or obtains possession of any premises during the pendency of his case for ejectment filed on ground at bonafide personal requirement, then he can not pursue his remedy mere ly on the ground of exercise of prerogative. He should explain the reasons for acquiring thi disputed premises in preference to the house in his posses-lion. Unless the landlord satisfactoriliy proves these facts, possession of one premises or acquiring possession of any premises during pendency of the case wit! militate against his bona fides. Mr. Shaikh has referred to Haji Manzoor v. Anwar (1984 CLC 2714) where'it was held thai as during the pendency of ejectment proceeding the landlord obtained possession of premised identical to the disputed premises and iet it out, he has failed to establish his bona fids requirement. In the present case the respondent has establish that the premises required by him is more suitable for hit about the date when copy would be ready. If such notice is not given then time requisite for obtaining the copy shall start when the application Tor copy was made and end when the copy was delivered. A party can not be penalised for the negligence or non-performance of duty by the court officers. As no notice intimating the date when copy would have been ready was given, the time from 11-6-1983 to 13-9-1983 will be excluded from computing the period of thirty days. The appeal is there fore within time. The appeal is however dismissed. Six months timj is granted to the appellant to handover vacant possession of the disputed premises to the respondent. (MIQ) Appeal dismissed.
PLJ 1985 Karachi 136 PLJ 1985 Karachi 136 Present: tanzr-ur-rahman, J Mst. HAJRA PAREKHAppellant verius M. RASHIDUDDIN-Respondent Second Appeal No. 20 of 1983, decided on 26-8-1984. (i) Civil Procedure Code (V of 1901)- O. IX, Rr. 6&7 -Ex parte proceedingsOrder ofSetting aside of Trial court not adhering to its earlier order for examining bailiff and committing material irregularity in proceedings of case by not taking into notice such order while dismissing application under O IX, R. 7, CPCHeld : Material irregularity having resulted in injustice to appellants, order of trial court to be set aside. [Pp. 139 & 140].4 & B (ii) Civil Procedure Code (V of 1908)
O. IX, Rr. 6,1 & \l-Ex-parte orderAvoidance ofHeld ; Fun damental principle of ustice being that case to be tried and judgment to be pronounced after giving due opportunity o both parties to present their case, ex parte orders and judgments to be expediently avoided s far as possible. [P. 140]C (iii) Civil Procedure Code (V of 1908)-
O. V, R. 17Summons Service of Refusal by defendant to acceptEffect ofCourtDuty ofHeld : In matters of holding service to be good, usual affidavit of bailiff serving summons by affixation or otherwise and endorsement of postman simply stating "refused by addressee" not to be taken lightlyBailiff and postman in such cases should be examined as court witnesses particularly when at time of holding service as good affected party be not before CourtHeld farther : Burden on court being heavier in such situation, court to be more cautions at stage of service keeping in view standard of morality and social behaviour of people before us [P. 140]P Mr. I I, Sulltman, Advocate for Appellant. Mr. M. M. Beg., Advocate for Respondents, Date of hearing : 12-8-1984. judgment This is a Second Appeal against the order dated 2lst April, 1933 passed by the Illrd Additional District Judge. Karachi in Rent Appeal No. 190 of 1979 upholding the order of the XVth Civil Judge/Rent Controller, Karachi in Rent Application No. 2217/1976 whereby the appellants were ordered to he ejected ex parte. The facts giving rise to ibis appeal, briefly stated, arc as under : 2. On 11-5-1976 respondent filed a case being R. C, No. 2217/76 in the Court of IVth Rent Controller, Karachi . The appellant could not be served in the ordinary course and therefore the earned Rent Controller ordered on 10-2-1977 for service by affixation as well as by Registered ost in addition to service in ordinary course and fixed the case for 14-3-1977. On 14-3-1977 the notice as returned by the bailiff with his report. The case was then put off to 15-3-1977 for orders. On 5-3-1977 and thereafter on four subsequent dates the matter could not be taken up for orders for want of time. On 9-7-1977 the learned Rent Controller after perusal of the endorsement of the ostman on envelope and the bailiff's report, held the service satisfactory and since the appellant did ot turn up to file written statement or objections, he ordered the case to proceed ex parte against he appellant and put off the same to 25-7-1977 for filing ex parte proof. The matter was adjourned n four subsequent dates and lastly on 29-8-1977 the affidavit in ex parte proof was filed by the espondent and the matter was put off to 3-9-1977 for orders. However, no orders could he assed on three subsequent dates for want of time. 3. On 4-10-1977, late diary shows, an application was filed on behalf of appellant under rder 9 Rule 7 C. P. C. On 5-1-1978 the case was transferred to the Court of XVth Rent ontroller, arachi who after hear ing the parties dismissed the said application by his order dated 20-1-179, refusing to set aside the order dated 9-7-1977 for ex parte proof. Subse quently on 4-2-1979 he llowed the ejectment application ex parte. 4. Being aggrieved by the said order, the appellant filed an appeal in the Court of District Judge, Karachi who was pleased to transfer the same to the Court of Illrd Additional District Judge, Karachi for disposal according to Saw. The learned Illrd Additional District Judge ismissed the appe l by his order dated 21-4-1983 against which the appellant has preferred this Second Appeal. 5. I have heard the learned counsel for the parties. On perusal of the diary sheet dated 10-2-1977 it appears that the Rent Controller ordered the issuance of notice to the appellant through bailiff as well as by way of aifixation and by Registered Post A. D. for 14-3-1977. There is a eport on solemn affirmation of the bailiff on record about affixation of the notice on the outer door of the premises in question, but there is no report of the bailiff of the service of the notice on the appellant in ordinary course. Both the forms of notice meant to be served through bailiff are available on the file at pages 67-69 of the ejectment case which appears no to have been issued at all, probably for the non-payment of cost. There is also no notice on the record issued through Registered Post for 14-3-1977 as ordered by the court referred to above. The learned Controller appears to have relied on the notice issued by Post and returned by the Postman with an endorsement "as refused" but that pertained to an earlier date of hearing as 26-10-3976. 7. The provisions of law relating to the service by affixation are to be found in Order V Rule 17 CivU Procedure Code, 1908 and Rule 107 of the Smd Civil Court Rules, 1947. RuSe 17 of Order V, C. P. C. reads as under : "Where the defendant or his agent or such other person as afore said refused to sign the acknowledgement, or where the service officer, after using all due and reasonable deiigence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identi fied and in whose preseace the copy was affixed." 8. Rule 107 of the Sind Civ l Courts Rules, 1947 relating to procedure where defendant efuses to accept service or cannot be found reads as tinder : "Where the person to be served refuses to sign the acknowledge ment or cannot be found, the serving officer shall, whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thumb impression of at least one respectable person of the locality in support of such fact." 9. On perusal of the report on solemn affirmation of the bailiff for affixation of notice it is apparent that the report does not mention the name of any witness in whose presence the notice was stated to have been affixed, which is the requirement of Rule 107 of the Smd Civil Courts Rules, 1927 and Rule 17 of Order V of the Civil Procedure Code, 1908. I, therefore, reverse the order dated 14-3-1977 of the Controller as to the service of notice on the appellant. 10. On the application under Order 9 Rule 7 moved by the appellant, the learned Rent Controller on 1-2-1978 passed an order to the effect that 'It will be in the interest of justice to xamine the bailiff who has served the notice in the case. Issue summons to the concerned bailiff for his exammatu n before the decision of the above applications filed by the parties' counsel. Put off to 17-2-78 for evidence of bailiff." It may be pointed out th?t the respon ent ad also filed an apiication under Order 19 Rule 2 CPC subsequent to the Appellant's application nder Order 9 Rule 1, as aforesaid.the application Order 9 Rule 7 C.P.C., committed a material irregularity in the proceedings of the case which has resulted in an injustice to the appel lant. The learned Appellate Court while passing the impugned order failed to appreciate this aspect of the matter. 16. I would, therefore, set aside the order dated 20-1-1979 passed by the Controller on pplication under Section 9 Rule 7 CPC dismissing the said application. 1 would also set side the impugned orders dated 4-2-1979 ordering ejectment by the Controller and 21-4-1983 of he learned Appellate Court upholding the same. With the result, the application for ejectment iled by the respondent against the appellant is deemed to be pending in the court of XVth ivil Judge/Rent Controller, Karachi aad the appellant is allowed to file her written statement and efend the case, 17. In view of the fact that the case has already taken about seven years, I would direct the learned Rent Controller to complete the trial Oj the case within three months from the date of she receipt of this order. The parties' counsel have been directed to appear in the Court of XVth Civil Judge/Rent Controller on 5th of September, 1984 to obviate further delay in the matter. 18. Before parting with the case I would like to observe that the fundamental principle of justice is that the case is tried and judgment is jronounced after giving due opportunity to both the parties to present their case. It is, therefore, expedient that ex parse orders and udgrrunt should be avoided as far as possible. In matters of holding service to be jood the sual ffidavit of the bailiff serving the summons by affixation or otherwise and the endorsement of the ostman simply stating "refused by the addressee" should not be taken lightly. It will be ppreciated if the courts examine the bailiff and the Postman in such cases, as court wit nesses, articularly when at the time of holding service as good the affected party is not before the ourt. The burden on the court is heavier in such a situation. The court must be more cautious at he stage of service, keeping in view the standard of morality and social behaviour of the people around us. 19. In the result, the appeal is allowed but, in the circumstances of the case, there will be no order as to costs. (M1Q) Appeal allowed.
PLJ 1985 Karachi 140 PLJ 1985 Karachi 140 Present ; salbem akhtar, J ABDUL MALIK-Appellant versus Mst, SAEEDA KHATOON -Respondent First Rent Appeal No. 202 of 1981, decided on 23-9-1984. (i) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959) -S. 13 (2) (v/) Eviction Reconstruction Ground of Landlady R-wafid Non-avaiitbility of Funds Landlady's attorney So far the first contention is concerned, it is true hat the respondent's husband who was alive at that time, stated that he being a retired person earns Rs. I/- or 2/- per day from a small shop he was running. There is noother evidence hat finances have been made available but the respondent's witness did state that he would pply for loan to the House Building Finance Corporation. In this regard Mr. Nadeem the earned counsel for the respondent referred to Habibullah Khan v MaqbooS Ahmed (PLJ 1981 Karachi 366), JUDGMENT where it was held that "the question of availability of funds nd sources in the odern times has no bearing or effect on the bonafide and good faith of the landlord as it is possible for a landlord to obtain loans for such purpose from various organisation's like House Building Finance orporation, Banks etc , and furtner more this condition has not been Said down in section 2 (vi) of he Ordinance". In view of the state- Iment made by the respondents attorney that h. will apply or loan to the /nHouu Building Finance Corporation, in my opinion, the poverty of the jresspoBdent cannot defeat her bona fides The learned counsel for the respondent has very vehemently argued that as other tenants of ths premises have not been evicted the order of ejectmsnt even if granted will not enable the respondent to construct the house, till such tims other tenants also vacate the premises. In this regard the learned counsel also referred to PLJ 1980 Lahore 227. This case is distinguishable on facts, because there one mortgagee was in possession of a part of the premises /. e. a shop and no ejectment proceeding was started against him. It was therefore, observed that it was not possible to obtain possession from a mortgagee without recourse to law. If a building is occupied by several tenants, and the landlord wishes to reconstruct it and files ejectment ciss against one tenant only then unless the landlord proves that the other tenants have agreed to vacate or that proceedings against all the tenants has b^n initiated or that according to the approved plan it is possible to construct the building in phases even without ejecting other tenants it may not be possible to grant ejectment as the landlord's action against one of the tenants adversely reflects upon his bana fide and good faith. However, it will be a dangerous precedent to lay do<va that unless all the remaining tenants have been evicted ejectmsnt order cannot be passed against a tenant. In the present case th: respondent has stated that other two tenants have promised to vacate the premises when she started construction. There is nothing on record to show that assurance given by other tenants is incorrect, or they will resile from their undertaking. On the assumption that the other tenants will not vacate the premises, it is not jpossible to stay the proceedings, or to reject the ejectment aoplication. The requirement under section 13 (2) (vi) of Sind Urban Rent Restriction Ordinance is that the landlord should establish his bonafide and good faith for reconstruction of ths building and that there should be an approved plan for the building he requires to reconstruct. Once plan has been S approved and bonafide as stated above has bsen established, there should be no impedimsnt in grant of order of ejectment. The ground that other tenants have not been evicted can be pressed in service for granting time for vacating the disputed premises. Mr. K. M. Nadeem the learned counsel for the respondent has further contended that in view of protection granted under section 13(5) of the Ordinance bona fides of the landlord is not relevant in granting ejectment under sec, 13 (2) (vi). The learned counsel hat relied on M/r Ameer Oil Allab Ditta v. Setb Adamjee Abdullah & Or§. (1969 S. C. M. R. 131) where following observation has been made : "The argument that the respondent's requirement of the new building was neither reasonable, nor bonafide was not relevant to the disposal of the ejectment petition filed under section 13 (2) (vi) of the Ordinance aforesaid. The penal provisions contained in sub-section (5) of section S3 of the Ordinance afford an adequate safeguard against a landlord acting in bad faith". Further in Haji Allah Ditta r. Shahsadl Bilqnis & another (PU 1980 S C 188) it was observed : "The mere fact that the landlord is willing to demolish the old building and invest a large amount of money in constructing s new one, notwithstanding the tremendous increase in the coit of construction, and the fact that he is willing to undergo imprison ment on his failure to demolish the building or to construct it within a specified period is sufficient to establish bis bonafides'. Putting the present ca»e to the test laid down by the Supreme Court in the aforestated authorities, it is clear that the bona fides and good faith of the respondent cannot be doubted. The respondent has obtained an approved plan from the relevant authorities, and is ready to invest the amount for construction, and face the penal consequences in case he fa Is to reconstruct the building, therefore, impugned order cannot be disturbed, Mr. Mushtaq Memon then contended that the findings of the learned Controller that the appellant has defaulted in payment of rent is miscon ceived. The respondent has claimed default for the months of November, to January, 1974 ccording to the appellant the respon nt by notice dated 7th November, 1973 called upon him to acate on 21-11-1973. Thereafter, the appellant tendered rent to the respondent's husband as usual for the month of November, 1973. This was refused by the respon dent and the appellant hen remitted rent for the months of November, and December, l97j through money order, and hereafter on 31-1-1974 he filed an application for deposit of rent, and is regularly depositing. He learned Controller came to the conclusion that although the appellant had pleaded that the rent or 2 months has been paid by money order, no documentary evidence or money order receipt as been produced. Accord ing to the appellant these receipts were filed in the Misc. Rent Case. His file was summoned by the learned Controller and t is alleged that after the impugned order as passed the appellant has found out that pages 16 & 17 are missing These were the alleged eceipts which had been fi.ed by the appellant. The appellant has annexed with the memo, of ppeal, a photo copy of the receipt of remittance of Rs. 90/- to the respondent as annexure 'B'. his amount was remitted on 12th January, 1974. This statement of the respondent has not eriously been challenged in cross-examination. Considering the fact that some material evidence as been removed from the Court file and is photo copy has been produced which though ade part of the memo, of appeal, no objection was raised by the other side, I am inclined to ccept that money order was remitted on 12th January, towards the rent for November and December. This according to the respondent was refused, and thereafter, the rent was deposited n Court. Considering the facts and circumstances, in my opinion no default h« been committed. However, on the ground that the appellant requires ths premises for bona fide need and in good faith for reconstruction of the building no exception can be taken to the ejectment order passed by the learned Controller. The appeal is therefore, dismissed. The appellant is permitted to hand over vacant possession of the disputed premises to the respondent on or before 3I-12-1984. (MIQ) Appeal dismissed.
PLJ 19g5 Karachi 144 PLJ 19g5 Karachi 144 Preient: sajjad ali shah, J M. S. KHANAppellant versus S. M. SIRAJUDDIN-Respondent First Ren! Appeal No. 247 of 1982, decided on 12-9-1984. (i) Sind Rented Premises Ordinance (XVII of 1979) S. 15 (2) (vji)Eviction Persona! requirement Ground of Landlord Bona ide ofHeld : Normally burden to lie upon land lord to prove his bona fide need for which e^tdence to be produc ed by himHeld further : Landlord to prove only good faith and mala fide, if alleged, same to be proved by tenant. [P. 145]^ (ii) Sind lented'Premises Ordinance (XVII of 1979) --S. 15 (2) (?!i)EvictionPersonal requirement Landlord Bona fide ofLandlord using premises as office before letting same out to tenant in 1964 Subsequently, landlord applying for eviction of tenant in 1972 for setting his office agains in premisesHeld : Land lord to be competent to come back in premises to use same as hi» office provided sufficient evidence be produced to satisfy court about bona fides of his need. [P. H6]B (Hi) Sind Rented Premises Ordinance (XVII of 1979) Ss. 15 (2) (vti) & 21EvictionPersona! use Landlord Ma/a fide on part ofEffect ofLandlord concealing all material facts from courtTenant, on other hand, proving bad faith and mala fide on part of landlord Held : Order of ejectment to be set aside in circumstances. [P. 14 1]C Mr, Shafaat Hu$ain, Advocate for Appellant. Mr. Muhammad Asar Husain, Advocate for Respondent. Date of hearing : 12-9-1984. judgment This first Rent Appeal is directed against impugned order dated 18-2-19S2 of learned XVII Senior Civil Judge and Rent Controller Karachi, Whereby ejectment has been granted on the ground of personal need. premises in question as such were let out to the tenant by the landlord in the year 1964 and before that the same premises were being used by the landlord as office. It is therefore,, stated that how can the landlord turn back and say that he wants the premises again for use as office, when knowingly he had Jet out the premises and maintained proper main office i as Saleh Mohammad Street. There is not much force in this contention for the reason that if the landlord wants to come back in the same premises to use them as his office, he can do so provided he produces sufficient evidence to satisfy the Court about the bonafides of his need Tenant cannot te!t landlord as to what to do. Second reason given by the tenant was that several shops in the same building became vacant and they were let out by the landlord, who did not use them as his office. On this point the case of the landlord is that he wanted only the accommodation in question for the reason that these are four shops side by side with the facility of bath ri'>.>m and laterine and this accommodation is best suited for office. Other aaps were not utilised by him for office for the reason that there was no facility of toilet in them. Additionally it is stated that landlord wants to have office in Azeem Market because it would be convenient to him ana he would be able to keep an eye on the development work and also would be bie to receive rent properly from the other tenants, It was then contended on behalf of the tenant that the need of the landlord is not bonafide because there are several landlords and respondent is only one of them and there is litigation going on between them and a notice was also published in the newspaper on behalf of one of the land lords Exhibit 3, whereby ienants were warned to be careful as attempts were being made to obtain enhanced rents and rent out premises on pugris There is no force in his contention for the reason that right from the beginning of the proceedings tenant has not challenged the right of landlord to receive rent. In fact tenant has been payng the rent to this very land lord who has been issuing receipts to him. When the landlord was in the witness box, no such challenge was mads to him that he could not legally recover rent from the tenant. la fact his title as such was not challenged. Next ground on which evidence of landlord is called in question is that the intention of the landlord was to pressurise the tenant to enhance the rent and not to acquire prenrses for personal bonafide need. On this ground tenant has produced sufficient evidence to show malafides of the landlord. First of all in the application for ejectment filed by the landlord on the record of the Rent Controller there is no mention that rent was increased from Rs. 120/- to Rs I50/- per month. On the contrary it is specifically mentioned in the application that rent is Rs. )2t)/- per month. In the Written Statement in paragraph 3 tenant has alleged specifically that landlord had pressed the tenant to increase the rent from Rs. 12/- to Rs. ISO/- per month After which the tenant sent the rent by Mony Order which was refused and then the rent was deposited in the Court When the landlord came to give evidence before the Rent Controller.in his Esamina?lon-in-Chief he did not utter a single word about his demaed for enhancement of rent from Rs. I20/- to Rs. 150- per month.d Whn this fact was uggested to him in Cross Examination, he denied it Learned Counsel of the tenant has invited my attention to Exhibit 4 and Exhibit 5. Exhibit 4 is the receipt which shows that rent of Rs. 3"< /- was accepted by landlord as Rs. 60/- for half month of October, 1970 at the rate of Rs. 120/- per month and Rs, 300/- as rent for the months of January and February, 1971 at the rate of Rs, 150'- per month. Exhibit 5 shows that rent of Rs, 600/- was accepted in two instalments of Rs, 300/- each. First s instalment of Rs. 300/- was accepted as rent for 2| months beginning from !6th October to December, 1970 at the rate of Rs. 120/- per month, Another instalment of Rs. 300/- is shown as rent accepted for Mirch and Aprs!. 1971 at the rate of Rs. ISO/- per month. Learned Counsel for the tenant argued before me that after the landlord started deducting the rent forcibly at the rate of Rs. !50/- per month the tenant resisted this enhance ment and sent a notice of the Advocate which is Exhibit 7 ob the record. In this n.otice there is a clear complaint with regard to the charging of rent at the rate of Rs. 170/~ per month instead of Rs. 120/- per month. The notice is dated 14-6-1971, Repiy was sent by the landlord which is dated 21-6-197' in which allegation is denied and it is stated that tenant on his own and voluntarily enhanced the rent and there was fresh agreement between the parties. Before me also learned Counsel for the landlord argued that the tenant himself offered enhanced rent which was accepted by the landlord and thereafter went back to pay the original rent and the landlord was quite helpless so he agreed to accept the original rent, 1 fail to understand this argument. If landlord was so helpless and was at the mercy of the tenant, then he could atieast state these facts in the applica tion for ejectment and his Examinatioa-m-Chief. Why landlord did not disclose these facts and why did he conceal these facts from the court. The landlord was confronted with this fact in the Cross Examination and the tenant has produced not only the receipts but also notice and reply of the landlord which are Exhibits 7 and 8 Not only this but the landlord in this Cross Examination has denied the fact that he demanded the enhanced rent Exhibit 9 h again notice sent by the Counsel of the tenant to the landlord in which the fact is reiterated that the tenant at no stage had agreed to pay the enhanced rent at the rate of Rs. 150/- per month, Exhibit li is another notice dated 23-12-1971 showing that attempt was made by the tenant to continue paying rent at the rate of Rs. 12U/- per month but since landlord did not accept the rent, the tenant started depositing the rent in Misc. Rent Case No. 12i/71 and such intimation was passed on to the landlord. All these documents have been produced bv the tenant and the landlord considered it fit only Jo deny the fact that he never demanded enhanced rent. These documents are more than enough to show raalafides of the landlord. The need of the landlord does not appear to be bonafide. The original intention of the landlord appears to be to increase the rent and when he failed to get the enhanced rent from the tenant, he has tiled this appiicarian for ejectment on the grounds of default and personal need Now it is understandable why the landlord at the final stage of argument did not press the issue of default. The reason is that the whole story about the enhanced rent was unfolded when the landlord was confronted with receipts and exchange of notices. Then land lord only contested the proceedings on the issue of personal need. Since the landlord concealed al! these facts from the Court, I hold that tenant has proved bad faith and malafide on the part of landlord. In the circumstances and for the facts and reasons stated above I set aside the impugned order of ejectment and allow the appeal, There will be, how ever, no order a& to cost. (MIQ) Appeal allowed.
PLJ 1985 Karachi 148 PLJ 1985 Karachi 148 Present : ajmal mian, J MUSHTAQ AHMED CHEEMA (deceased) represented through Legal RepresentativesAppellant versus KHURSHID BEGUMRespondent First Rent Appeal No, 608 of 1981, decided on 28-5-1984. (i) Sind Rented Premises Ordinance (XVII of 1979)
Ss. 16 (2) & 21Deposit of rentOrder ofNon-compiiance of WaiverPlea ofFailure to raiseEffect ofHeld : Question of waiver being mixed question of facts and law, party to raise such plea expressly before first court unless investigation on question of facts be not involvedAppellant raising no such plea Jbefore Rent Controller or in memo, of appeal filed before High Court Held : Plea not to be allowed to be raised during arguments. [P, 149 jA (ii) Sind Rented Premises Ordinance (XVII of 1979) S. 16(2)Deposit of rent Order of Non-compliance of WaiverPlea ofHeld : Question of waiver being generally mixed question of facts and law, party wishing to press into service waiver as plea of defence to be required to plead it expressly. [P. 152JC (iii) Sind Rented Premises Ordinance (XVII of 1979) S. 16 (2)Deposit of rent Order of Non-compliance of Effect ofDefenceStriking off Waiver Plea ofHeld : Delay simpliciter in filing application for striking off defence after com mission of default of tentative rent order not to amount to waiver, on port of landlord Held further: To constitute waiver there must be conscious giving up of right of landlord i e. there should be inten tional relinquisbment of known right by landlord, fP. 152]B Mr, Khalid Latif, Advocate for Appellant, Mr. Haziqul Khairi, Advocate for Respondent. Date of hearing : 28-5-1984, judgment This appeal is directed against the order dated 22-9-1981, passed by the learned Xth Senior Civil Judge & Rent Controller, Karachi, in Rent Case No. 121/78. 2. The relevant facts leading to the filing of the above appeal are that the respondent filed the aforesaid rent application on the grounds of personal requirement and default. The above application was resisted by the appellant. The learned Rent Controller passsed a tentative rent order on 30-1-1979, for depositing the arrears of rent for the period commencing from August 1978 to January 1979, at Rs 7M)/- per month amounting to Rs, 4.500/- and the monthly rent for the month of February 1979 before 15m vltfvii, IjJ}. Tii: raspondjat filed aa application under section 16(2) of the Sind Rented Premiies Ordinance, 1979, hereinafter referred to as the Ordinance, on 14 2-1981 for striking off the appellant's defence on the ground that payment of August 1980 was made three days late without any request for condonation. The learned Rent Controller sent for Nazir'i report and after hearing the parties by his order dated 229-1981 ordered the striking off the defence on the ground that the appellant committed default of the tentative rent order. The appellant being aggrieved by the above order has filed present appeal, 3. Mr. Khalid Latif, the learned counsel for the appellant, has pointed out that gainst the receipt dated 12 3-1980 bearing no. 54oOO the appellant had deposited Rs. 1500/- nd ot Rs. 750/- as mentioned by the Nazir in his report on the back of the respondent's above pplication under section 16 (2) of the Ordinance, and, therefore, there was no default for the onth of July 1980. He has furtner urged that though there was default as per Nazir's eport for the month of June 1978 but that default was waived by the respondent by not filing n pplication for striking off the defence immediately on discovering the above default. On the other hand, Mr. Haziqul Khairi, the learned counsel for the respondent, after seeing the original receipt dated 12-3-1980, conceded that there was no default for the month of July 1980. However, he has contended that admittedly there was default in depositing of the rent for the month of June 1979, which was deposited admittedly on 16-7-1979 and not upto 14-7-1979. He has further contended that the appellant had not pleaded any waiver either before the learned Rent Controller or before this Court and that even otherwise there was no waiver. 4. Mr. Khalid Latif in support of his above contention has referred to the Nazir's report ated 18-8-1979 on the respondent's application dated 15-H-1979 for the withdrawal of rent, hich ndicates that the rent for the month of June 1979 was factually deposited on 16-7-1979. On the basis of the above report it has been urged by him that since the respondent had not filed any pplication for striking off the defence after submission of this report and as the respondent has ot even alleged this default in his aforesaid application under section 16 (2) of the Ordinance, it mounts to waiver. It may be observed that the appellant has not raised any plea of waiver efore me in his memo of appeal nor it was raised by him before the learned Rent ontroller which is evident from the order uader appeal. Since the question of waiver is a ixed question of facts and Saw in my opinion it is incumbent upon a party to raise such a plea xpressly! before first Court unless the investigation on the question of facts is not involved. As he appellant had not raised any such plea either before the learned Rent Controller where it was rged that there was default of the tentative rent order, even in respect of the month of June 1979 or the said plea has been expressly raised before me in the memo of appeal, I am, therefore, of he view that the appellant is not entitled to raise such a plea uring the arguments However, ince the arguments were advanced, I have examined the above plea on merits and I am of the iew that it is devoid of any force. 5. Mr. Khalid Latif in support of his above contention has referred to the following cases :- (0 S. Y. Moh»jir v. Mil, Aitha J«mi (PLJ 1984 Karachi 172), in which case ji ^earned v Single Jud§e of this Court held that since the (iv) M. A. Y»faya v. Nawab Abdul Malik Estates Limited (1982 C.L.C. 772), in which a Seamed Single Judge of this Court inter alia held that without knowledge of the right there could be no waiver and that since no time for making application under section 13 (6) of the lats West Pakistan Urban Rent Restriction Ordinance, 1959, was prescribed, the delay in filing of such an application by itself cannot amount to waiver. Whereas Mr. Haziqul Khairi has relied upon the folio wing cases : (/) S. M. Hamid All v. C. H. Machado (PLD 1976 Karachi 817), in which a learned Single Judge of the erstwhile High Court of Sind & Baluchistan held that a delay of three months in filing of an application under section 13(6) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, does not amount to waiver, (n) Mst Bachi Bai v. Ghulara Abbas (PLD 1972 Karachi 278). In the above case it was held by a learned Smgle Judge of the erstwhile High Court of Sind & Baluchistan that delay by landlord in making an applica tion for striking off the defence of the tenant and withdrawal by the landlord of rent deposited after the delay does not amount to waiver on the part of the landlord. The above Lahore High Court judgment given in the case of Syed Masood Hussaio v. Muhammad Steed Khan (PLD 1965 Lahore 11), was dissented from. (Hi) Haji Faaal Karina v. District Judge Lahore (PU 1982 S. C. 657). In the above case the facts were that the order of striking oft" the defence by the Rent Controller was challenged through a writ petition which was dismissed by a learned Single Judge of the Lahore High Court, the Hon'ble Supreme Court while dismissing petition for leave to appeal against the above judgment of the Lahore High Court observed that a tenant is entitled to an opportunity to show cause before his defence is struck off as the Rent Controller is not obliged to hold fulfleged trial. iq the above case the Rent Controller had passed the order of striking off the defence without any formal application though he heard the tenant on the question of striking off defence before passing of the order of striking off the defence. (/v) The Burma Oil Company Limited v. The Trustees for the Port of Chittagong (P.L D. 1961 S.C 452), in which the question before the Hon'ble Supreme Court was, whether the trustees for the Port of Chittagong had waived the toll which was levied in 1955 but no formal demand was made until 17-5-1960. While dealing with the above question it was held by the Hon'ble Supreme Court that in order to constitute a waiver there must be some conscious giving up of the right. , (v) Mustaqim v. Sher Bahadur [PLD 1962 (W.P ) Peshawar 14], in which a Division Bench of the erstwhile High Court of West Pakistan Peshawar Bench while hearing the second appeal in context with the question, whether there could be waiver in a case of pre-emption observed that "waiver as commonly understood is an intentional relinquishmerit of a known right," (vi) Dr. M. Fazii Zshir &. Others v. Mst. Begum Jan & Others [PLD 1966 (Vi ,P ) Lahore «;»], in which a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Bench, held that mere acceptance of rent for the period subsequent to that for which default had taken place or at a date subsequent to filing of an application for ejectment cannot amount to waiver by the landlord of his right to eject tenant for default. (vii) Ismail v. Muhammad Siddique [PLD 1961 (W.P.) Karachi 111J. In the above case a learned Single Judge of the erstwhile High Court of West Pakistan at Karachi held that mere acceptance by landlord of rent relating to the period subsequent to notice to quit does not amount to waiver of such notice. (vm) Mst. Alima Ahmed v. Amir Ali [PLJ 1984 S.C. 241] in which the Hon'ble Supreme Court was pleased to hold that the alleged practice of accepting accumulated rent is no defence to a ground of default. I am inclined to hold that sirnpliciter delay in filing of an applica tion for striking off the defence the commission of the default of a tentative rent order does not amount to a waiver on the part of the landlord To constitute a waiver there must be conscious giving up of the right by the landlord or in other words there should be an intentional relinquishment of a known right by the landlord. In the present case there is no material on the record either to infer that the respondent had discovered the default of the tentative rent order in rsspect of the month of June 1979 upon submission of the Nazir's report dated 18-8-1979 on the aforesaid respondent's application dated 15-8-1979, for the withdrawal of he rent or that the respondent had consciously or intentionally relinquished his above known right. A pointed out hereinabove that the question of waiver is generally a mixed question of facts and law and. therefore, a c party who wishes to press into service waiver as a plea of defence is required to plead expressly. As observed hereinabove the present appellant has not raised any such plea expressly with the result that there is no material on the record on the basis of which it can be inferred that the respondent had waived his right of getting the appellant's defence struck off on the ground of non-compliance of the tentative rent order. 7. For the aforesaid reasons the appeal is dismissed with no order as to costs. However, I allow six months time to the appellant on the condi tion that the appellant shall continue to deposit rent in terms of the Rent Controller's order, failing which the respondent shall be at liberty to file execution application before the expiry of the above period of six months. Furthermore, if on the expiry of the above period of six months, the appellant fails to vacate the premises in question, the Rent Controller shall issue writ of ejectment without further notice to the appellant. (MIQ) Appeal dismissed.
PLJ 1985 Karachi 152 PLJ 1985 Karachi 152 Present: abdul razak A. thahim, J Shah NASIR RIZVIAppellant verius Begum SULTANA AHMEDRespondent First Rent Appeal No. 123/1983, decided on 15-3-1984. (i) Sind Rented Premises Ordinance (XVII of 1979) Ss.15 & 21EvictionOrder ofAppeal againstCompetency to institute proceedings Objection regarding-Tenant not raising objection regarding competency of landlady to file rent case in pleadings before Rent ControllerHeld: Such iegai point? to be com petently raised at appellate stage. [P. 155JA PLJ 1980 Karachi 248 ?ef. (ii) Sind Rented Premises Ordiaance (XVII of 1979)
S, 15 (viij Eviction -Persona! requirement Bona fide of Evidence of landlady remaining unchallengedHeld : Entire state ment of landlady on her personal requirement and being landlady of property to be accepted (as correct). [P. 155]B & C P L J 198! Lah. 307 and 1980 C L C 1611 rtf. Mr. Munawar Abbas, Advocate for Appellant, Mr, Raja Qureshi, Advocate for Respondent, Dates of hearing : 8-2 and 4-3-1984, judgment This First Rent Appeal under Section 21 of Sind Rented Premises Ordi nance 1979, (hereinafter referred to as Ordinance) has been filed against the order dated 16-1-1983, of Hod Senior Civil judge/Rent Controller Karachi whereby he directed the appellant to hand over the vacaoi possession of the premises to respondent. 2. The facts of this case are that on 24-9-1981, Begum Sultana Ahmad Sled Rent case against her tenant Shah Nasir Rizvi. She stated in her application under Section 15 (vii) of the Ordinance that she is landlady of premises bearing No. I54-R Khushha! Road Block-2, P E C H S Karachi and appellant is her tenant on ground floor. She is living in Lohore where her youngest son was studying and now after ompleting his studies has joined service. She now wants to shift to Karachi, where her daughter is also living with family, therefore, she requires the premises for her personal bonafide use. 3. Appellant filed written statement in which relationship of tenaat and landlord is admitted. The exchange of correspondence and notices have not een denied. He has alleged that respondent landlady ants to hand over the premises to some other person on enhanced rent and she has ao intention to live in the premises. She is not living at Karachi for the last 15 years and her married dughter is living in Karachi for he last seve ral years. He has further alleged that respondent filed application under M L O-20 for bis ejectment and on 21-9-1977, Summary Military Court passed an eviction order but in Revision the order was set aside. His contention is that Rent Cases has been filed just to harass hi ib, 4. Before the Rent Controller the respondent filed her affidavits and examined her son-in-law Jawed Akhtar Whereas appellant examined himself and produced lease agreement and other documents. Espondent Begum Sultana Exh. A, has stated in her evidence before the Rent Con troller that she is presently residing at 42/1, street No. 24 of Khayabab-e- ^Majahid Phase V-Defence Housing Society, Karachi and she had beeo living Lahore as her son was studying and now he has joined job and want to shift to Karachi permanently. She has deposed all other facts as mentioned in her rent application. She as stated that she requires the premises for her personal bona fide use. She has not been cross-evamined. Her statement oo oath stands unrebutted and unchallen ged, 5. Jawed Anwar Exh. 1>A, is son-in-law of respondent. He has fully corroborated the versioo of Bigum Sultana Ahmsd on alt the points raised in Rent Application. He has deposed in his affidavit-inevidence that she wants to shift Karachi and requires the premises for her personal use. Hs had dsnied ifae saggsstion of demanding the enhance ment rent. 6. Appellant in his evidence has stated that respondent does not require the premises as she has no intention of coming to Karachi and that she has demanded enhance rent of Rs, 2000 and on his refusal, she filed this Rent Case. Hs has further stated that respondent in 1977, filed an application before the Martial Law Authorities under M.L.O-20 and Summary Military Court ordered ejectment but that order was set-aside in revision. He has admitted that lease was not renewed since 1976, and respondent was demanding vacant possession since then. He has further admitted in cross examination that rate of Rent from 1975, till to-day is the same. The appellant had not examined any witness in his support. 7. Mr. Munawar Abbas, Advocate for the appellant has raised the following contentions: 1. that rent application is not maintainable. 2. personal bona fide is not proved as respondent has asked for enhancement of rent which appellant has refused to pay t therefore rent application has been filed. So far first contention is concerned, it is contended that respondent earlier filed rent application under M. L. Q. 20 which was accepted but subsequently in revision the eviction order passed by Summary Military Court was set-aside. Therefore fresh application is barred by Section 11 C.P.C. res judicata. He has relied upon a case Mst. Ktasrshid Anwar and another v. Muhammad Hassans reported in P L D 1956 Lah page 134, wherein it has been held that decision of a tribunal of special jurisdiction operates as res-judkata only with regard to matters pertaining to its special jurisdic tion and the order of Rent Controller under Punjab Urban Rent Restriction Act, not res judicata in subsequent civil suit on question of title. In my view the present case is distinguishable from the case cited . by the learned counsel. On the other hand Mr. Rajs Qureshi, learned counsel for the respondent has cited the case Pakistan International Airlines Corporation t. Mst. Safooran Khatnim reported in 1981 C L C (Kar.) page 1036 wherein it has been held that subsequent ejectment application on the same ground not barred because requirement for personal need may not have arisen formerly but may arise subsequently, even though previous application of tenant on personal ground was decided against the landlord. He has also relied upon the case reported in S C M R 1976 page 243 (Hidayatullah v. Deputy Commissioner/Additional Settlement Commissioner, Land) and 2 others) and PL! 1979 Kar. page 181 (Gbulam Bahauddin Kureshi v. Mrs- Hawa Bai) wherein it has been held that the requirement of the same landlord at different limes also could be different - Mere fact of requirement being of same property and for a tisnilsr purpose does qo| make two issues substantially similar due to requirement in each case being of different persons having different needs, and in this it has been decided that principle of rgs-judicata does not apply. 8, It has also been submitted on behalf of she appellant that respon dent has got only 1/8 share ia the premises therefore she can not file rent case. This contention was act raised in the pleadings before the Renti Controller however, It is a legal point and I agree with the learned!. counsel that it could be raised at the appellate stage as has been held in! 1982 CLC Karachi p. 4 = PL! 1980 Kar. 248. However, reliance is| being placed by the appellant on the statement of Jawed Anwar who it son'm-lawcf the respondent who has stated ia his statement that respon dent has 1/8 shares in the property. 9. Mr, Munawar Abbaa has relied upon PLJ 1980 Pesh page 25 (Pairar Rehman v. Ghulam ~ Habib and 2 others) wherein it has been held that where there are more than one landlords and they agree to use of the property by one of them, the tenant occupying same can be ordered to put the landlord in possession. The case is distingnishable. Rent Case was filed by the landlady/respondent in which it is stated that she is sole owner o the property. In written statement this point has not been denied. The respondent was receiving rent of the premises from appellant since last 9 years. She was examined before the Rent Controller where she has stated that she is the owner. She was not cross-examined- and her statement stands un-challenged. The appellant has not produced any other evidence and failed to furnish list of co-sharers. Witness Jawed Anwar by stating that she has 1/8 share in the property may have presumed that she being a widow might have a 1/8 share after the death of her husband. He has not been asked about the names of other co sharers. Had she been cross- examined she could have explained this position. The contention is raised first time. The appellant has all along been considering the res pondent as his landlady. The point raised has got no force. B 10. So far personal bana fide is concerned, the evidence of the land lady/respondent has gone mi-challenged. It is now well settled law that in these circumstances evidence should be accepted as correct, for reference 1 may cite PLJ 1981 Lahore page 307, (Syed Akhtar Hussain v. Wall Bahadur and 3 ethers wherein it has been held that statement of landlord on oath that he requires rented premises for his own use, held, sufficient to prove his bana fides and a case of Ghalata All and 4 others v. Muhammad Haoif reported in C.L.G, 1980 page 1611 wherein it has been held that portion of testimony of witness not subjected to cross-examination held, to be taken as correct. As stated above the landlady has not been cross-examined. therefore, I have no hesitation in accepting her entire statement on her personal requirement and being the landlady of the property. 11. The last contention of the appellant is that the respondent wants to enhance the rent therefore, she has filed the rent application. On this I refer the case of Peerzada afiq Ahmad v. Ch. Abdul Rehnun reported in SCVSR 1980 page 772, wherein it has been held that demand of higher rent by landlord does not by itself cast any doubt about personal bona fide requirement of premises by landlord if factum of bona fide requirement independently proved. Also there are so many decided rent cases on this point. The Rent Controller in his order has discussed the entire evidence led by the parties and the case Saw as well. He has come to the conclu sion that respondent has proved her personal bona fide. 12, The respondent/landlady was demanding the premises since 1976, for her persona! use. Her son-in-law Jawed Anwar is also living at Karachi with his family which also proves that she wants to live at Karachi with her daughter therefore her bona fide can not be doubted.In view of the above facts and circumstances the appeal is dismissed and consequently the order of the Rent Controller is maintained. (MIQ) Appeal dismissed.
PLJ 1985 Karachi 156 Present : NASIR A PLJ 1985 Karachi 156 Present : nasir A. zahid, J Mst. SHAKILA BEGUM and 4 Others-Appellants versus Haji MUHAMMAD DINRespondent First Rent Appeal No. 552 of 1983, decided on 5-11-1984. Sind ReBted Premises Ordinance (XVII of 1979}- Ss. 15 (2) (vii) &. 21EvictionPersona! requirementGround ofLandlord Sana fide of Original landlord dying in 1974 leaving behind one widow and four minor children Eldest son earning livelihood by selling bananas in thelaOn attaining majority and having saved some money, such landlord wanting to start grocery business in shop in question-Appellants owning no other property apart from property in questionHeld : Case for personal require ment in good faith established by appeiSants, [P. I59].4 Mr. M. Abdul Karim, Advocate for Appellants. Mr. Abdul Majid Khan, Advocate for Respondent. Date of hearing : 5-11-1984. JUOOMfcNT This is a first rent appeal filed by the appellants/landlords against the order dated 25-5-1983 of the learned Rent Controller, Karachi, dismissing the ejectment application filed by the appellants for the ejectment of the respondent/tenant. Rent Case No, 5241 of 1980 was filed on 16-9-1980 on the ground of default and personal requirement of the appellants. The premises in question are a shop which was rented out to the respondent in November, 1971, at Rs 100jper month by Syed Shabbir Ali, husband of appellant No. I and father of appellants No, 2, 3, 4 & 5. The said Syed Shabbir Ali died in 1974 and thereafter the respondent became the tenant of the appellants, who are legal heirs of deceased Syed Shabbir AH. A written statement was filed by the respondent in rent case, in which the allegation of default was denied and the case of the appellant for personal requirement was a!so resisted. On behalf of the appellants, Saieem AH, (appellant No. 2) gave evidence and one Syed Quddus A!i,brother of widow, Mst. Shakila Begum, lso gave evidence. The respondent/tenant examined himself and one Mohammad Idriss, a neighbour, also appeared as a witness on his behalf. By the impugned order dated 25-5-1983, the learned Rent Con troller, Karachi, dismissed the ejectment application oh boih the grounds, Being aggrieved, the present first rent appeal has been filed y the appellants under section 21 of the 1979 Sind Rented Premises Ordinance. I have heard Mr. Mohammad Abdul Karim Siddiqui, learned counsel for the appellants and Mr. Abdul Majid Khan, learned counsel for the respon dent, 2. This appeal is not pressed by Mr, M. Abdul Karim Siddiqui on the ground of default. Accordingly this appeal has been argued before me only on the ground of personal requirement of the appellants. e earned Rent Controller did not accept the case of the appellants for personal requirement on the following grounds :~ (a) The appellants had not stated in their rent application nor in their affidavit-in-evidence about the particulars of business which they intended to start. (b) Appellant No. 2 did not state in his evidence that he had sufficient funds to start the business in the premises ia question, (c) Appellant No. 2 had stated that he was jobless, whereas his maternal-uncle (S. A. Quddus Ali) stated that appellant No, 2 was selling fruit on a "thtla". (d) The ejectment application had been ftied with mala fide intention, inasmuch as the ejectment application had been filed after six years of the death Syed Shabbir Aii and that the appellants bad refused to accept the rent tendered by mooey-order by his tenant and there was no explanation for not accepting the rent by money-order which shows that the appellants wanted to create a ground for ejectment of the respondent with mala fid intention. (e) (f) There is no evidence on record to establish that the need of the appellants is genuine. 3. It has been contended by the learned counsel for the appellants that a case for requiring the premises in question in good faith by the ap pellants had been made out on the evidence on record. According to the learned counsel, the evidence of the appellants had shown the specific purpose for which the shop in question was required. It was also contended that the evidence had established that the funds were available with the appellants and that no false statement was made by appellant No. 2 in his evidence. It was also argued that mala fides had not been established against the appellants. ccording to the learned counsel for appellants a case had been made out for ejectment of the respondent on the ground of personal requirement of the appellants. Learned connse! for the appellants elied upon the judgment of the Supreme Court in the case of Toheed Khanans v, Muhammad Shroshad (1980 SCMR 593} and another judgment given by me in the case of Qamaruddin v. Hakim Mahatood (PLD 1983 Kar. 570) for the proposition that an ejectment application filed under the Rent Restrictions Ordinance on the ground of personal requirement of the landlord is not liable to be dismissed solely on the ground that the specific purpose, for which the premises in question are required, has not been specified ia the ejectm nt application. lewas t heo argued by the ^^^.SSSSTofSi the evidence on record had only estabhshed, ^ ; of law under the appellants, who required the premise, and » e te 9 j do not ree , n Rent Restrictions O^nance had not been estabSB^^^ ^ {hg p assessment of the evidence or record tiaa J requirement The were reqiured in good faitn by ne a PP a V ° died in 1974 leaving behind] evidence hows that the or.ginal ^dlora had a Qf fiu {he ^^ Pettition Allowed
PLJ 1985 Karachi 166 [DB] PLJ 1985 Karachi 166 [DB] Present : abdul hayee kurfshi, CJ & saleem akhtar, J GHULAM RASOOL and AnotherPetitioners versus RETURNING OFFICER, Malir Cantt : Karachi and 2 OthersRespondents Const. Petition No. D-78, of 1985, decided on 29-1-1985. (i) Writ Jurisdiction
Alternative remedyFailure to availEffect ofPetitioners not availing any of remedies provided under lawHeld : Point not to be agitated before High Court in its Constitutional jurisdiction. [P. 168]B (ii) Interpretation o! Statutes
LegislatureIntention ofHeld : Legislature when wishes to pro vide for limited remedy or remedies only to limited class of persons, it generally says so succinctly. [P. 168],4 (iii) Quo Warranto
Writ ofHeld : Right to move High Court for grant of remedy in nature of quo warranto to dwell in every individual. [P 169]C Mr. S. Abrar Hassan, Advocate for Petitioners. Date of hearing : 29-1-1985. order The present petition has be'cn filed by Ghulani Rasool and Ghulam Mustafa, who claim to be voters in National Assembly Constituency No. 196, to a seat, which is described as "Karachi 7". The grievance of these petitioners is that respondent Muhammad Ramzan. who is described in the title of the petition as "son of not known, Muslim, adult, residing at 125, Haji Rahim Khan G:>th, Model Colony, Karachi", and who has offered himself for election to the National Assembly and whose nomination paper has been filed, scrutinised and accepted, is not entitled to contest for reason of disqualification contemplated by sub-section (8) of section 10 of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (P. O. No. 5/1977). This provision contemplates disqualification on the following terms : "(8) if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a con tract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by Government" Admittedly, none of the two petitioners objected to the filing of the nomination paper, nor appeared at the time of scrutiny of the nomination papers, nor did they file an appeal against the acceptance of nomination ppers. However, Mr. S. A. Hassan states that, since the two petitioners were not contesting candidates, or, election agents of the contesting candidates, or, person authorised by election candidate to attend the scrutiny of nomination papers, these petitioners had no right, or, opportunity to appear and object to the acceptance of the nomination papers. In order to assimilate the remedies, which are provided by the Repre sentation of the People Act, 1976 (Act LXXXV of 1976), it is necessary to re-produce such provisions in the above Act as are relevant. The first three sub-sections of section 12 of the said Act, which are relevant in the context, read as follows : "12, Nomination for Election.(1) Any fifty electors of a constituency may nominate a duly qualified person to be a member for that constituency Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by all the fifty proposers and shall contain a declaration signed by the candidate that he as consented to the nomination and that he is not subject to any disqualification for being elected as a member. Every nomination paper shall be delivered by any of the proposers to the Returning Officer, or his nominee, who shall acknowledge receipt of the nomination paper specifying the date and time of receipt". Section 14 of the said Act deals with scrutiny, and the same to the extent of relevancy reads as follows : "14. Scrutiny.-(1) The candidates, their election agents, and proposers, and one other person authorised in this behalf of each candidate, may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examination papers delivered to him under section 12.The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-section (1), examine the nomina tion papers and decide any objection raised by any such person toany nomination. The Returning Officer may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that (a) the candidate is not qualified to be elected as a member". Sub-section (5) of section 14 provides for an appeal against the decision of the Returning Officer in cases of acceptance, or. rejection of a nomination paper. his prevision reads as follows : va n.j.v. xwlui iiing£ vxiiiv^d Hi v-dava v '» o.wwpta.iiv tion paper. This prevision reads as follows : '(5) An appeal against the decision of the Returning Officer under sub-section (4) shall lie to the Commissioner or, in the case of a constituency within the territorial jurisdiciion of a Bench of a High Court, to a Judge of the High Court nominated by the President in consultation with the Commissioner and the Chief Justice of the High Court, and shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final". On a reading of the several provisions from the Representation of People Act, which have been re-produced above, it would appear that, except In the matter of filing a nomination paper, the remedies by way of appeals at the time of scrutiny, and even appeal against that could be filed by any person. Section !4, which deals with scrutiny, does not state, or, describe as to who are the persons authorised to subject to the acceptance of a nomination paper. On the contrary, it is stated that the Returning Officer may, either on his own or upon any objection, conduct a summary enquiry and reject a nomination paper. To that extent, Mr. S. Abrar Hassan states that objection could be raised only if the petitioners were authorised persons to appear at the time of scrutiny. He states that sub section (1) of section 14 only contemplates the appearance of candidates, election agents and authorised persons at the time of scrutiny, but this sub section does not state that, besides these persons, none else could appear. On the other hand, since the power of scrutiny of nominations could even be exercised by the Returning Officers suo motu, the petitioners could have sent objections in writing to the Returning Officer for examination. Even this they did not do. Similarly, sub-section (5) of section 14 of the same Act, which deals with appeals relating to acceptance or rejection of nomination papers does not prescribe, or, lay down as to who could prefer such an appeal, and, in such circumstances, it would not be reasonable to state that only a contesting candidate could file an appeal against the acceptance of the nomination paper ot another candidate. It must be stated that the statute, when it wishes to provide for a limited remedy, or, remedies only to a limited class of persons, it generally says so succinctly, fn the instant case, there is no such limitation. 1 In The petitioners, not having availed of any one of these remedies, canot be allowed to aattate that point before us in Constitutional jurisdiction. The next point, that has been urged by Mr. S. Abrar Hassan in regard to maintainability of the petition, is, that, since the dispute concerns an elec tion to a public office, any person could bring a petition, for such petition seeks remedy in the nature of" quo warranto. He has invited our attention to a decision of the Lahore High Court in the case of Fateh Khan v. Sharaaf Khan, decided by a Division Bench, which is reported in P, L. L 1984 Lahore 4!. He has particularly invited our attention to paragraph 7 in the same judgment. It reads as follows : "7. With regard to the second submission of the respondent that the petitioner is not an aggrieved party and, therefore, has no locus standi to seek any relief, we need only draw attention to Article 9 (I) (b) (ii) of the Provisional Constitution Order, 1981, which permits any person, not necessarily an aggrieved person, to file a petition for quo warranto. There is, therefore, no force in this submission, which is rejected".A bare reading of the above quoted passage from the judgment of the Lahore High Court would show that the learned Judges of that Court were dealing with the case of an election after the elections had taken place and the respondent had been elected. An objection was raised that such election could only be challenged by a contesting candidate. On the other hand, the petitioners relied on the provisions of Article 9 (1) (b) (ii) of the Provisional Constitutiorj Order 1981, which provides that a remedy in the nature of a wTit 01 (jwo H^nv.'Uw i,.ju;a be sought by any pers.cn. The term -quo war- "~" ' . ran/o' 1 has been explained in numerous judicial decisions, and, shortly put, v the term means the calling into question of a person olding a public office. Since every person has a right to say that persons, holding public office, are f duly elected and hold office proparly and in accordance with law, the right to move a High Court for grant of emedy in the nature of quo warrant! dwells in every individual. The situation, at present, is different, for the respondent No. 4, Muhammad Ramzan, is not holding any public officetoday. The oncept of a right in the nature of quo warranto, therefore, is
not attracted at present. This case from Lahore jurisdiction '«, therefore, completely distinguishable. There is another feature of the case, which lso eserves mention, and that is in regard to identity of respondent No. 4. The description of this respondent in the title has been re-produced in an earlier part of this order. Mr. S. Abrar Hassan has produced some etters, which have been written on a printed letter head, which reads as follows : Rayalty Contractors (Karachi Division), Directorate of Industries & Mineral Development Department, Government of Sind". The name of respondent No. 4 has, according to Mr. S. Abrar Hassan, been wrongly typed as "Muhammad Hassan", but even if we assume that this name is of Muhammad Ramzan, still uhammad Ramzan, respondent, in the various letters, that are piaced on the record, has described himself as Muhammad Ramzan Katiar; and what is moie that his address in Form V, which is the list of ontesting candidates prepared by the Returning Officer, is shown to be "125 Haji Rahis Khan Goth Model Colony Karachi". Again, uri annexure to the present petition shows the address of Muhammad ,-=-_, Ramzan Katiar to be -3/273, Hahim Ra/a Road. Moael Colony, Karachi
21". This address again is vastly different from the address of Muhammad Ramzan, the contesting candidate, as shown in Form epared by the Returning Officer. In these circumstances, even the identity of Muhammad Ramzan, Contractor, is in serious doubt. For all the above reasons, we are of the view that this petition does not merit to be mitted, and we dismiss the same in Hmine. (MIQ) Petition dismissed.
PLJ 1985 Karachi 200 PLJ 1985 Karachi 200 Present : munawar An khan, J ABDUL HAQ and AnotherAppellants versus Sayed BASHARAT AL1Respondent First Rent Appeal No. 448 of 1981, decided on 23-I2-1984. (i) Urban Rent Restriction Ordinance (W, P, Ord, 1959, VI of 1959)-
S. 13 (2) (i)EvictionDefaultGround ofNo agreement bet ween parties about payment of rent- Rent for months of may and June tendered by 17th JulyHe!d: There being no default on part f tenant, application for eviction (on such ground) to be premature [P. 201L4 (ii) Urban Rent Restriction Ordinance 1959, (W. P. Ord. VI of 1959) -S. 13 (3) (a) (ii)Eviction Personal requirementGround of Rent Controller Duty ofPrayer for eviction based on ground of personal requirementHeld : Rent Controller to ascertain through proper enquiry of genuineness of landlord's requirement Held further : All factors throwing light on requirement oi" landlord includ ing availability of suitable personel for running business in premises to be competently taken into consideration by Rent Controller. [P. 203JC (iii) Urban Rent lestriction Ordinance 1959, (W, P. Ord. VI of 1959)- S. 15 read with Civil Procedure Code (V of 1908)O. XL1, R. 22Rent Controller Order of Appeal againstCross-objec tions Competency ofNo provisions in Ordinance enabling respon dent to file cross-objection with regard to decision on points decided against him Held : Respondent to competently agitate points decided against him in course of hearing of appeal hied &y aggrieved, party (while supporting order passed in his favour). [P. 2u3j£ , PLJ 1981 Lahore 135 re/. Mr. Naraindas, Advocate for Appellant. Mr. S. Inayat Alt, Advocate for Respondent. Date of hearing i 16-12-1984. judgment The facts giving rise to this appeal are as follows. The respondent Syed Basharat Ali who claims to be the owner/landlord of 2 shops con structed on Custodian Survey No. IB/417 at Charaan Incline, Khandiaro District Nawabshah, had let out shop No. 2 to the appellant Aodul Haq on monthly rental of Rs. 45. On 12-9-1978 the afore mentioned landlord brought an ejectment application seeking ejectment of the said tenant on four grounds : namely, default in payment of rent ; demolition and recon struction of the shop ; conversion of the shop into a godown and personal requirement-In this written statement the appellant Abdul Haq denied that shop in question was let out to him. According to the plea taken by him the dis puted shop was rented out to his son, appellant Zaheeruddin. In view of this stand taken by appellant Abdul Haq, the respondent moved for amendment of his ejectment application which was accordingly allowed and Zaheeruddin was joined as a party. The ejectment application was resisted also by the appellant Zaheeruddin who denied the allegations con tained in the application. The learned Reat Controller after considering the evidence adduced by both the parties allowed the application only on the ground of default in pa\ment of rent, deciding ail other points in favour of the appellants. Being aggrieved by the order of the learned Rent Controller the appellants preferred the present appeal. However the respondent filed cross-objections challenging the decision of the learned Rent Controller with regard to requirement of the disputed shop for his personal use. Mr. Naraindas was heard in support of the appellants' case whereas Mr. Syed Inayat Ali submitted his arguments on behaif of the respondent. It was submitted by the learned counsel for the appellants that controversy with regard to default in payment of rent is confinsd only to the rent for the months of May and June 1978. This is not disputed by the learned counsel for the respondent. It is also an admitted position that the rent for the said two months was tendered to the respondent'landlord within the month of July 1978. In this connection reference may be made to money order coupon dated 17th July 1978 (Ex. 73) which clearly shows that the rent for the months of May and June 1978 was remitted by appellant Zaheeruddin to the respondent Basharat Ali on the date carried by the money order coupon. As provided in clause (i) of subsection (2) of sec tion 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 (here inafter referred to as the Ordinance) in absence of agreement between the parties, the landlord can seek eviction of the tenant within 60 days from the date on which the rent is due but has not been paid In the instant case there was admittedly no agreement between the- parties about payment of the rent. Therefore the rent for month of May was due to be paid on first: June and in the case of its default, the ejectment application was to be filed after 60 days from the said date i e. by 31st July 197H. But as evident from the money order coupon referred to abovi the resit for the months of May and June was tendered by i7th July 1978 Consequently (here being no default on the part of She appellant, the application for their eviction was premature. The findings of the learned Rent Controller on the point of default were therefore erroneous and are hereby set aside Further submission of the learned counsel for the appellants was that the cross-objections, filed on behalf of the respondent on the question of personal requirement, were incompetent and hence could not be taken into consideration. The learned counsel for the respondent did not seriously question the correctness of the above contention He however submitted that respondent would bs within his right to agitate the points which have been decided against him by the learned Rent Controller, even if no cross appeal or cross-objections were filed on his behalf. In support of this view hs placed reliance on D. B. decision of this Court reported as Henry Stanley Ramsden and 2 others v. S M Fazail & Co. [PLD 1964 (W. P.I Karachi 290] wherein it was held : "He pointed out and rightly that as the result of the suit had been in his favour he is entitled to raise all those questions which would entitle him to that result and to attack the findings of the learned trial Judge upon the other issues and this he could do without filing a cross appeal or cross-objections".The other authority relied upon by the learned counsel for the . resoondent was the ca c e of Lahore High Court reported as Sh Muhammad Asferaf v. Sh. Muhammad Almas (PLJ !98! Lahore 135). This case involved several cases of ejectment under West Pakistan Urban Rent Restriction Ordinance 1959 in which the tenants had filed appeal from the appellate orders of the Additional District Judge. The question arose whet" si the landlord could submit arguments on the points which had been decided against him bv the lower courts, even though no cross-objections or cross-appeal had been filed by the landlord. It was heid :'The appeal before the learned Additional D<s'nct Judge was governed by the provisions of Section 15 which admittedly does not require or provide for any cross- bjections Jt provides for an appeal by an aggrieved party against an order from which that party is aggrieved. Whatever be the number of grounds taken in tbs application for ejectment the ntention of the landlord is to secure ejectreent of the tenant. If, notwithstanding the fact that some of the issues are decided against the landlord, or, the land lord according to the Rent Controller, therwise proves some of the grounds and some of the issues covering the other grounds are decided in favour of the landlord, bat the ultimate order of the Rent Controller is that of ejectment of the er.ant, clearly he can not be considered to be an aggrieved parly for fih-ig of an appeal under Section 15 of the West Pakistan Urban Rent Restriction Ordinance. In these circumstances there being no provision under Section 15 about the filing of an appeal in the circumstances of the case by she landlord, the general principle of Saw that the landlord can support the ultimate order of ejectaisni on the grounds other than those which ad been decided against bim by the Rent Con troller, will apply ._ The order of eviction being in favour of the landlord he could not have tiled any cross-objection or cross appeal and could only support the ultimate order of eviction by showing that the order of the Rent Controller on the issue of reconstruction could not be maintained". The question with regard to filing and maintainability of cross objec tions were also considered in the case reported as Shafiq-ur-Rehmaa v. Abdul Ghani (1983 CLC 2020} wherein it was held : "It may be advantageous to deal with the question of maintain ability of the cross-objections. In ray view, it is an academic question which does not require any derailed examination since respondent could have supported the ejectment even without filing cross-objections on the ground of personal requirement". respondent's demand of the shop for persona! requirement was obviously inconsistent with his plea that the shop was in dangerous condition and was iikely to collapse at any time and therefore it needed to be demolished. In this respect the respondent has gone so far to say that even notice had been given to him by the Administrator. Town Committee Kandiaro requiring him to demolish the shop. He has also produced the notice (Ex. 59) in support of his assertion. Further more it is admitted that hi? son for whom he required the shop was still studying in Co' ;ge at Khairpur. This only means that his son was not available for doing business in the disputed shop. All this clearly shows that the respondent's plea of personal requirement was neither bonafide nor was it made in good faith.In view of the above discussion t have come to an irresistible conclusion that the landlord hes failed to prove that he needed the shop for his personal requirement. Thus the findings of the learned Rent Controller on this point are correct and no interference by, this court is called for. In result the appeal is allowed with no order as to costs. (SHR) Appeal allowed.
PLJ 1985 Karachi 204 [Sukkttr Bench] PLJ 1985 Karachi 204 [Sukkttr Bench] Present : ibadat yar khan, J MUHAMMAD PARIALPetitioner versus GOVERNMENT OF SIND through Deputy Commissioner, Sukkur and 4 OthersRespondents Civil Revision Petition No. SOS of 1983, decided on 17-1-1985. Civil Procedure Code (V of 1908}
S. 96 & 0. XLI, R. 11-Original decreeAppeal fromHeld : First Civil appeal to be admitted as matter of courseImportant questions of law and facts involved in caseHeld : Findings and conclusioni drawn by trial court to be examined in depth by first appellate court. [P. 207 & 208]^ 1968 SCMR 828 & PLD 1973 SC 1 ref. Mr. (jianchand. Advocate for Petitioner. Mr. G M. Dunani, Advocate for Respondent No. 5. Dates of hearing : 9 & 14-1-1985. judgment Thii is a civil revision against the judgment of the learned District Judge, Sukkur dismissing the first Civil appeal in limine. Petitioner Muhammad Parial is a local. He is occupying a house since 1950. Undsr the Settlement Scheme No. 1 he was entitled for the transfer of this hous as a local in possession. On 15th August, 1959 he filed his L. H. form praying for the transfer of the house. !t is further stated that thereafter he moved several applications for issue of appendix. According to him three applications dated 10-12-1960, 99-1962 and 17-3-1965 were moved but no action was taken by the Settlement authorities either on his LH form or on these applications. It is alleged that the Deputy Settlement Commissioner, respondent No, 4 collusiveiy and SLHrt-'piituuisi} transferred the house to respondent No. 5 S. M, Waj that This transfer was confirmed by respondent No. 3, Additional Settlement Commissioner. The applicant came to know about it when this transferee sought to eject the present applicant. On acquiring knowledge through none, of ejectment the applicant reacted and filed a suit being suit No. 161 '79 in the Court of Civil Judge, Sukktir praying for the following reliefs :- "(;') To declare that the auction of tiie said premises held on 24-4-61 was illegal as well as null and void. (ii) To declare that the aajti.Mi of the suit premises held on 27-4-1968 is null and void. (Hi) To cancel the T. O. N,< I3:7i dated 21-8-7? in reipccs of the suit premises. (iv) To declare that the plaintiff is entitled to transfer of the suit house No. A-1408/20 Kiri quarters old Sukkur by virtue of the possession of the house valuing less then ten thousand rupees and LH form dated 16-8-1959, (v) To grant mandatory iniuiKUon directing the defendant No. 2 to transfer the suit premises to the plaintiff. (vi) To grant injunction restraining the defendant N'o. 5 from ejecting the plaintiff from the suit house by himself or through his agent or attorney or transferee.' 1 No contest was put up by th: ;irst Kvsr respondents. Only the trans feree Wajahat entered appearencc in the uit and filed his written statement. Following issues were framed : 1. Whether the auctions ot the suit premises held on 24-4-1961 and 27-4-1968 by the dependent No. 4 are null, void and illegal ? If so, its effect ? 2. Whether the plaintiff had hied LH form on 16-8-1959 for the transfer of the suit property and whether it was not decided by the defendant No. 4 '' 3. Whether the suit is time barred '.' 4. Whether the suit is not maintainable ' 5. What should the decree be " The evidence was led by the parties i he applicant was examined and he made a statement that "The defendant \n. 5 has played fraud upon the Settlement authorities b$ declaring the property as open plot and by pur chasing it for Rs. 1000 though >t was f illy constructed house. The transfer uk! mala fide. The auction was not rson or through press". He denied any agreement before the Martial in favour of defendant No 5 is illegal open nor we re-eived any notice in having paid any rent or having ex;cu law authorities before hom th? mater had gone at the instance of the respondent No. 5. He filed copie-, of the .-.pplications which he had filed LH forms. He has not produced either counter toil of the LH form or a postal receipt to substantiate his claim. He has relied upon two applications originals whereof are also not available on record of Settlement authority. Inward register of the department was n t called to prove that the applications were in fact received in the office of the Deputy Settlement Commissioner on the alleged dates. It does not require evidence to prove that documents receiv ed in office are entered in inward registers in the ordinary course of business. There is every likelihood in the circumstances that the photo stats of these applications have been recently planted on the file to boost up case of the appellant. The finding of lower court in this regard is therefore unassailable." There is no doubt that the learned Judge has taken pains and given a serious thought to all possibilities and all necessary modes which could be employed to prve the filing of the LH forms and the applications. But this itself becomes a good ground to show that at a latter stage all or some of the material visualized by the learned Judge could be brought on the record or many of the doubts raised by the learned Judge in his order could be explained at the time of hearing of the appeal. This is precisely the objection of the learned counsel for the applicant that the conclusions drawn sn this judgment are prematur in as much as Ihe appeal never reached the stage of regular hearing where arguments in details could be addressed to the learned Judge and the case could be examined in full thoroughness, Two cases have been cited by the learned counsel which lend support to his sub missions. In S968 SCMR 828 Hamoodur Rahman, J (as he then was; dealing with a case under the Rent Act made the following observations : 'Generally in an appeal from an original decree, the appeal is both on facts and on law but inan appeal from an appellate decree or order the appeal is oa grounds of law only. Inan original appeal or what is more commonly called a first appeal the first appellate court is the final court of facts. Dismissal under Order, XL1, rule 1! of the Code of Civil Procedure of a first appeal is therefore not the general rule. If the facts are not simple or undis puted a first appeal is not generally dismissed in liming." " Another case relied upon by the learned counsel is PLD i973 S C. page!. In this case the powers of a Single Judge of a High Court to dis miss an appeal in limine came to be examined But one passage which may profitably be quoted is on interpretation of Order XL!, rule 11. "As has been observed by this Court in the decision cited above, dismissal in limine of a first appeal i« not the general rule but is resorted to only in those cases which are of such a simple nature that no question of law or fact arises for consideration. In such cases rule 11 of Order XLI of the Code of Civil Procedure does certainly give the Appellate Court the power to dismiss an appeal in limine." In this region it is a tune honoured practice that a first civil appeal is admitted as a matter of course. As I ave stated above, in the presem appeal important questions of law and facts are involved and it would b<. in the interests of court arc examined in depth by the ttr.si appellate ^ouit. 1 uould, therefore, allow this revision, set aside the appellate judgment and remand the case to the learned District Judge with the direction thai ihe first appeal should be admitted and disposed of on merits according to law. (MIQ) Petition allowed.
PLJ 1985 Karachi 208 [DB] PLJ 1985 Karachi 208 [DB] Present : ajmal mian & Syr-o haidfr ali pirzada. JJ Sycd T.ASNFEM HUSS.AI V Petitioner \cp-i.is SINP LABOUR APPELLATE TRIBUNAL. Karachi and Another-Respondents Const. Petition No. 1708 of I9«0 decided on 20-2-1985. (i) Industrial Relations Ordinance. 199 iXXIli of 1969)
Ss. 25-A read with Industrial & Commercial Employment (stand ing) order} Ordinance, I96X (W.P. Ord. VI of 1968)S. 2 (i) Wire-man employed in Electric DepartmentGrievance ofRedress of ire-man working under Electric Inspector of Government of Sind falling within definition of "workman'' given in clause (i) of S. 2 of Ordinance (VI of 1968)Held : Provisions of Industrial Relations rdinance to be competently pressed upto service by peti tioner. | P. 2ilj/,> (ii) Sind CiriS Servants (Ecffiiency & Disciplined Rules. 1973 ~-R. 1Govt. employee;. -- Applicability oi rules toHeld : Sind Civil Servants (E & D) Rules. 197.1 to be applicable to civil servants and not to Government empk>\ee< falling within definition of worker or workman given mi Facione-s Act. 1934 (XXV of 1934} or Work men's Compensation Act. !<)2- (VIII of )Q?3). jP. 210J/4 (iii) Sind Civil Servants (Efficiency & Discipline) Rules, 19^3 ....... -R. i read with F;icSoncs Act. (934 -;X.\V
-.)' 1934;._-S 2 (g) & (h) Wireman in Electric Department
Viii--tppbcabili1y of rules to Petitioner employed as wire'ii'in umior [ : k-ctr^ inspector of Govern ment of SindHeld : Wiremun in elecirit; dcpanmcnr being covered by definition of''worker ' and his work uilso.i falling within definition of "manufacturing process", Eliicitn.n nnd Discipline Rules not to be applicable to him. j P. 2 k;!# & C (iv) Factories. Act, 1934 (XXV of 1934;.-
S. 2 (g) & ^h") See Sind Civil Se> jp.i- ' EHicienc>' & Discipline} Rules, 19'73-R, 1. jP. 2\0<B & C Vfr. Muhammad Ahmed Saef.d. A-J\^-. .s-e tor Petitioner. Syed Ahmed Farooqui. Advocate !'-" Respondent \ r o. 2. Dates of hearing : 19 & 20-2-! ^ JUDGMENT Ajmal Mlfto, J. 'flic peutioner has impugned the order dated 22-9-1980 passed by Respondent No. 1, if sac Sitid Labour Appellate Tribunal at Karachi in Appeal "" HYD-SM'Hi) ^-(fms aside the order date 25-5-1980 passed by the learned Presiding Officer, Labour Court No. VI at Hyderabad Sind . 2. The brief facts leading to the filing of the above petition are that the petitioner was working as the wire-man under Electric Inspector of the Government of Sind, Hyderabad and was posted under supervision of Electric Sub-Inspector Badin. The petitioner was served with a show-cause notice dated 12-8-79, which was replied to by him by his explanation dated 15-8-1979 refuting the allegations ontained in the above show-cause notice and requesting the department to furnish the details. However, in response to another department's letter dated 19-8-1979 the petitioner submitted an other reply on 22-8-1979. After that the petitioner received order dated 8-10-1979 terminating his services without any enquiry. The petitioner filed an appeal before the department but thereafter on 17-2-1979 filed an application in the Labour Court No. VI, Hyderabad under section 25-A of the I. R. O. which was allowed by the aforesaid order daled 25-5-1980 with back benefits. The Electric Inspector to the Government of Sind being aggrieved by the above order filed the aforesaid appeal, which was allowed by the above impugned order dated 22-9-1980 on the ground that the petitioner was not covered by the definition of worker and workman given in the I. R. O, and in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (hereinafter referred to as the Ordi nance). The petitioner being aggrieved by the above order has filed the present petition. 3. (a) In support of the above petition Mr. Muhammad Ahmad Saeed, learned counsel for the petitioner has urged that since the petitioner was not a civil servant, the Sind Civil Servants Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the said Rules), were not applicable to the petitioner and, therefore, the petitioner falls within the definition of the 'worker' given in section 2 i) of the Ordinance. (ft) On the other hand Mr. Syed Ahmad Farooqui, learned counsel for Respondent No. 2 has contended that the petitioner is governed by the statutory rules and, therefore, he does not fall within the ambit of the defini tion of workman given in the above subsection (i) of Section 2 of the Ordi nance. 4. Before dealing with the above contentions of the learned counsel for the parties, it may be pertinent to observe that clause (b) of Section 2 of the Sind Civil Servants Act. 1973 defines Civil ervant, which reads as follows : ''civil servant" means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include (f) a person who is on deputation to the Province from the Federa tion or any other Province or authority ; or (//) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies : or (Hi) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934). or the Workmen's Com pensation Act, 1923 (VTII of 1923)." it may be observed that under the above quoted definition of'civil servant' intfr alia a person who is a worker or workman as defined in the Factories Act, 1934 or in the Workmen's Compensation Act, 1923has been excluded from being a civil servant. In this regard it may be pertinent to reproduce rule 1 of the Rules which reads as follows : "1. Short title, commencement and application : (1) These rules may be alled the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. (2) They shall come into force at once and shall apply to all civil servants wherever they may be : Provided that the civil servants of such category or grade as may be specified by the Chief Minister shall be excluded from pur view of these rules." It is evident from the above quoted rule that the rules are applicable A nnly to civil servants and ot to the Government Employees, who are not [civil servants but fall within the definition of the worker or workman given Jin the Factories Act, 1934 or the Workmen's Compensation Act, 1923. Inthis view f he matter, if we were to hold that the petitioner is a worker or workman within the ambit of the definition given in the above two Acts, the rules were not applicable to the petitioner. It is, therefore, necessary to examine the definition of the worker/work man given in the above two Acts. Sub-section (h) of Section 2 of the Factories Act defines worker as follows : "(h) "worker" means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing pro cess is being carried on." B A plain reading of the above clause indicates that a person employed directly or through an agency whether for wages or not, in any manufactur ing process, or in cleaning any part of machinery or premises used for a manufacturing process, or in any other kind of work whatsoever incidental to or connected with the subject to the manufacturing process, is a worker but a person solely employed for a clerical job has been excluded from this definition. It may also be pertinent to point out that clause (g) of Section 2 of the above Act defines "manufacturing process" as infer alia means any process for generating, transforming or transmitting power. It is, therefore, evident that the petitioner being a wireman in the electric department is covered by the definition of the worker as his work falls within the definition of the manufacturing process given in the above clause (g) of the Act. We are, therefore, of the view that the rules were not applicable to him and, therefore, the proviso 1 to clause (c) of para 4 of Section 1 of the Ordinance, namely, that the provisions of the Ordinance shall not be appli cable to Industrial and Commercial Establishment carried on by or under the authority of Federal Government or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein is not attracted to, with the result that the pro-l visions of the Ordinance could have been pressed into service as the peti-K? tioner falls within the definition of workman given in clause (i) of Section) 2 of the Ordinance. 5. We, therefore, allow the petition and declare the impugned order as being without and of no legal effect.The case is remanded back to the learned1sind Labour Appellate Tribu nal with the direction to decide the appeal afresh. 6. Before parting with the above discussion, it may be observed that Mr. Farooqui has contended that no valid grievance notice was served by the petitioner. It will uffice to observe that it will be open to the respon dent department, as well as to the petitioner to raise the above plea or other legal pleas, which may be available to the parties before the learned Sind Labour ppellate Tribunal. The petition stands disposed of in the above terms with no order as to costs. (TQM) Petition allowed
PLJ 1985 Karachi 211 [DB] PLJ 1985 Karachi 211 [DB] Present : abdul hayee k.ureshi, CJ & abdul razak A. thahim, J SADRUDDINPetitioner versus MEMBER (LAND UTILIZATION), BOARD OF REVENUE, SIND, HYDERABAD and 2 OthersRespondents Const. Petition No. D-832 of 1984, decided on 5-11-1984. (i) Colonization of Government Lands ( Punjab ) Act, 1912 (V of 1912)
-Ss. 10 & 24 LeaseGrant of extension ofRight ofHeld : Grant or renewal of lease being in discretion of relevant authorities, extension of lease not to be claimed as matter of right. [P. 2\2}4 (ii) Provisional Constitution Order 1981, (CMLA's 1 of 1981) Art. 9Concurrent findings of TribunalsInterference withAll three Tribunals giving concurrent findings against petitioner Held : High Court not to make factual enquiry in matter in exercise of its Constitutional jurisdiction, [P. 213JC ( ili ) Writ Jurisdiction Exercise of- Held : Object being to provide relief in addition to right of appeal or other adequate remedy, High Court in exercise of Constitutional jurisdiction to rectify jurisdictional defect 4 or order passed arbitranly or in excess of jurisdiction or failure to exercise jurisdictionHeld further : Such jurisdiction not to be invoked (merely) on ground of petitioner having exhausted all remedies available under relevant law. [P. 2l Syed Sarfraz Ahmed, Advocate for Petitioner. Mr. Muhammad Ibrahim Memon, Advocate A. G. for Respondent. Date of hearing : 5-11-1984. JUDGMENT This petition had been dismissed in iitnine b> a short order dated 4-11-1984 and reasons for such short order presently follow. The brief facts leading to the filing of the above petition are that peti tioner took two pieces of land bearing No. 213-A/l2-0 acres and B/13-0 acres, on lease in Deh Konkar for Wahi Cbahi cultivation purpose, for the period of 10 years commencing from 1973-74. The allotment orders were issued by the Deputy Commissioner Karachi (East) in favour of the peti tioner on 6-2-1974 respectively. The petitioner applied for a renewal of lease of the above land for further period of 30 years as per policy of the Government but respondent No. 3. Deputy Commissioner (East), Karachi cancelled the lease by an order dated 3-12-1983 on the ground that petitioner has failed to cultivate the land during last 5/6 years. By the same order this land has been resumed to Government as provided under section 24 of Colonization of Government Lands ( Punjab ) Act, 1912. Being aggrieved with the order of the Deputy Commissioner, the petitioner filed on appeal under section 161 of Land Revenue Code to the Commissioner Karachi Division, who also dismissed his appeal on 11-2-1984. The order of the Commissioner was challenged in revision before the Board of Revenue. The Member, (Land Utilization) Board of Revenue. Sind Hyderabad, by an order dated 12-3-1984 dismissed hi« Revision. We had issued a pre-admission notice to the Advocate General. We have heard Mr. Syed Sarfaraz Ahmed, advocate for the petitioner and Mr. Muhammad Ibrahim Memon, Additional Advocate General for the respon dents. Petitioner was granted land for 10 years commencing from 1973-74 on lease and that period is over. The grievance of the petitioner is that order refusing to renew the lease is not proper. We are not inclined to agree with Mr. Syed Sarfraz Ahmed because grant of lease or revewal is discretion of the relevant authorities and grant of extension of lease, cannot be claimed as a matter of right. Such grants are made according to the policy $ of the Government. In this case though petitioner had failed to. cultivate the land but inspite of that during last 10 years his lease was neither cancelled nor the possession was interfered with. Mr, Syed Sarfraz Ahmed has argued that the petitioner has exhausted all the remedies under the law and is now entitled to invoke the Constitutional jurisdiction of this Court. On the point of maintainability of Writ Petition in exercise of Consti tutional jurisdiction, we would like to refer following cases : (/') In case of Muhammad Huisiin Muoir v. Sikandar and others re ported in PLJ 1974 SC 60, it has been held by the Supreme Court that when a tribunal has jurisdiction to decide a particular matter, then it has jurisdiction to decide it rightly or wrongly and if the decision is incorrect it does not render the decision without jurisdic tion. It has been further observed that High Court, in writ jurisdiction, not competent to interfere with order of Tribunal on purely equitable considerations. ( it ) In a case of Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sind and another reported in PLD 1984 Kar. 462, a Division Bench of this Court placed reliance inter alia on the cases of Nawab Syed Raunaq AH etc v. Chief Settlement Commis sioner and others reported in PLJ 1973 SC 42 and the above case of Muhammad Hussain Mimir and others v. Sikandar and others (PLJ 1974 SC 60) and held that a mere wrong decision would not render the decision without jurisdiction, (Hi) In a case of Abdul Rash id and others v. Muhammad Riai and others reported in 1984 S C. M R. 450, while dealing with-dispute over inheritence of property and concurrent findings on question of facts by Courts below the Supreme Court has held as under : 'It would be noticed that both the above noted issues, on which the decision of the case hinges, relate to questions of fact, on which the three Courts below have given concurrent findings. The con tention raised by the learned counsel for the petitioner only amounted to a request requiring us to reappraise the evidence and reverse the above noted concurrent findings of fact arrived at by the learned lower Courts. We are afraid in the circumstances of this case we do not consider it proper to do so. Leave is, therefore, refused." and same view has also taken in case of Mst. Musharofa Begum v. Syed Nayyat Hussain and others reported in 1984 S. C. M. R 377 and Honourable Supreme Court held that finding of fact cannot b: interfered with by High Court on its writ jurisdiction. We are of the view that Constitutional Jurisdiction cannot be invoked on the ground that petitioner has exhausted all the remeJies available under the relevant law. The object to provide a relief in addition to a right of appeal or other adequate remedy, the High Courts in exercise of Constitu tional jurisdiction have to rectify jurisdictional defects or order passed in excess of jurisdiction or failure to exercise jurisdiction or orders passed arbitrarily. In the present case there are three concurrent findings of Tribunals against the petitioners. We are not supposed to make factual enquiry in this matter in exercise of Constitutional jurisdiction. For the reasons stated above we are of the view that this petition i§ without any substance. We, threfore, dismiss this petition in limine , ( TQM) Petition dismissed.
PLJ 1985 Karachi 213 PLJ 1985 Karachi 213 Present ' tanzil-ur-rahman, J F. K. ABBASI-Appellant versus M. !.. MALIK-Respondent Civil Revision Application No. 264 of 1976, decided on 17-1-1985. Land Acquisition Act. 1894 (I of 1894)
S. 16CollectorPower to take possessionExercise ofEffect of Held:- Owner of requisitioned property to continue to be its owner till possession thereof be taken by competent authoriiywhere upon owner to be divested of his rights, title and interest in property and same to vest absolutely in Government. [P. 2i5]A AIR 1960 Pat. 382 : AIR 1965 Assam 12 ; AIR 1980 Delhi 73 & PLD 1972 Lab. 458 ref. Mr. Badrudduja, Advocate for Petitioner. Mr. Z. U. Ahmad, Advocate for Respondent. Dates of hearing : 16 & 17-1-1985. judgment This is a Revision Application under Section 25 of the Provincial Small Causes Court Act hereinafter referred to as "the Act". 2. The facts leading to this Revision Application are that on 8-7-1976 the Applicant filed a Distress Warrant Application bearing No. 178 of 1976 under Section 27-A of the Act for recovery of rent of Rs. ,750 due against the Respondent for five months from 21-2-1976 to 21-7-1976, at the rate of Rs. 350 per month, in respect of the ground floor of bunglow No. 37-B/2 P. E. C. H. S., Karachi. 3. The learned Judge of the Small Causes Court dismissed the said application by his order dated 12-8-1976 which is reproduced below : "Heard the advocates for parties. It is admitted position that the property has been acquired by the Government and even award has been given. The proceedings regarding compensation only are pending. As such the applicant ceases to be owner of the pro perty. Advocate for applicant relies on PLD 1955/570/573. (sic) which is not applicable to the facts. D. W. is dismissed." 4. Mr. Badrudduja, learned counsel for the applicant contends that the impugned order is illegal inasmuch as the learned Judge, while passing the impugned order, has not taken note of Section 16 of the Land Acquisi tion Act, 1894 which eads as under : 16. When the Collector has made an award under section II, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances." 5. It is submitted by him that so long as the possession of the acquired property has not been taken over by the competent authority, the acquired property does not vest absolutely in the Government and the right, title and interest of the original wner of the acquired property continues as before. Reliance was placed on a Full Bench decision of the Patna High Court ( India ) reported as State of Bihar v. Dr. G. H. Grant and another (A. I. R. 1960 Pat. 382). 6. In the Patna case the following question was referred for the deci sion of the Full Bench : "In a proceeding under the Land Acquisition Act, does title to the land pass to the State as soon as award under Section 11 is made and filed under S. 12 or is it deferred til! possession is taken under S. 16 of the Act?" in question within thre« days. There is also a certificate of handing over and taking over possession of the property in question duly signed by the appel lant on the one hand and two Government Officials, namely the Land Acquisition Surveyor and the Assistant Engineer, on the other, which verifies the fact that the possession was handed over to and received by the Govern ment on 22-9-1977. In view of this documentary evidence and the respon dent's own admission on affidavit, in the Court of Small Causes in the D. W. proceedings, referred to above, I agree with the submission of Mr. Badrudduja that there seems to be a clerical mistake in the deposition of the applicant wherein February, 1976 instead of February, 1977 has been re corded. There is, therefore, no necessity for remanding the case to the lower Court. The possession of the premises in question having been taken by the Government in February, 1977 and the outstanding rent having been claimed by the appellant from the respondent in respect of the premises for a period from 21-2-1976 to 21-7-1976, during which the respondent was a tenant and in possession of the premises in question, the applicant is entitled to recover rent from the Respondent. The order of the learned Judge Small Causes Court is, therefore, illegal and set aside. 7. In the result the Revision Application is accepted but with no order as to costs. (MIQ) Petition accepted.
PLJ 1985 Karachi 216 PLJ 1985 Karachi 216 Present : ibadat yar khan, J RICE EXPORT CORPORATION OF PAKISTAN LIMITED, F. I. Chundrigar Road, KarachiPetitioner versus IVth SIND LABOUR COURT , Karachi and 2 Others-Respondents Const. Petition No. 10 of 1980, decided on 10-11-1984. Corporation Employees (Special Powers) Ordinance, 1978 (XIII of 1978)
Ss. 3 & 5 read with Service Tribunals Act, 1973 (LXX of 1973) S. 4,Payment of Wages Act, 1936 ([V of 1936)Ss. 15 & 17 and Constitution of Pakistan, 1973 -Art. 199-Employee of Corporation Termination of services ofArrears of salaryClaim ofRes pondent person employed in '-Corporation Service" during period from 1-1-1972 to 5-7-1977 Corporation service subsequently declared to be Service of PakistanHeld : Respondent being compe tent to claim his relief (arrears of salary) from Service Tribunal, Commissioner for Workmen's Compensation and Authority for Payment of Wages Act not to entertain his grievanceHeld further : Forum approached being not competent to entertain grievanc e , orders of Authority (for Payment of Wages) and Labour Court to be without lawful authority and of no legal effect. [P. 220 }A & B Mr. Arif Hussain Khilji, Advocate for Petitoner, Nemo, for Respondents. Date of hearing : 6-31-1984. judgment This petition has been filed to question the validity of the order passed by respondent Nos. 1 & 2 on complaint of respondent No. 3 claiming wages and dues from the petitioners under whom he was working as a'-Chowkidar". The petitioners are a company registered under the Companies Act and are managing the export of grain which was formerly conducted by Director General of Food, Government of Pakistan. The respondent No. 3 was serving under the former employer "as a contingent employee" a term which according to the learned counsel appearing for the petitioner means that this respondent was in a standby position to be called to work on daily wages basis whenever the employer wanted him to serve. After the petit ioner took-over they attempted to regulate the agreement of employment of the employees and by an office order dated 20-11-1976 they employed some of the employees including the respondent No. 3 on probation in the caders of 'Chowkidar for a limited period of three months. His employment could be terminated under paragraph 2 of this office order which runs as under : "They will be on probation for a period of three months with effect from 1st of November. 1976. During their probationary period th'eir work and conduct are not found satisfactory their services will be terminated without notice." On 31-1-1977 the petitioners terminated the services of the respondent No. 3. The reaspondent No. 3 entertaining a grievance under this termina tion served a notice of grievance on the petitioners. After exchanging notices the respondent No. 3 filed an,application being Application No. 1559/78 before respondent No. 2 claiming a sum of Rs. 3780/-as outstanding dues against the petitioners. This claim was contested by the petitioners. This complaint was filed before and disposed of on 30-9-1979 by respondent No, 2, who is the commissioner under the Workmen Compesation and Pay ment of Wages Act. Under this order the respondent No. 3 was awarded a sum of Rs. 3780/- as him dunes. The petitioners filed an appeal under section Payment of Wiges 17 of the Act before the Appellate Labour Court IV at Karachi and this IVth Appellate Court dismissed this appeal by an order dated 27-1-1980. It is this order which is being challenged in this constitution petition.it is not necessary to examine the case of the parties on merits because Mr. Arif, the learned counsel for the petitioner has confined his arguments to the bar created by Ord. XIII of 1978, an Ordinance to govern a situation of this kind. The learned counsel contends that the two impugned orders are passed by authorities who are corum non-judice and not competent to entertain and adjudicate on the complaint of the respondent No, 3. In support of this contention reference is made to the provisions of Ordinance XIII of 1978 which was published in gazette extra-ordinary Part I on 19-3-1978 and has become effective from the date of its publication. Section 3 of this Ordinance postulates that : "Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service, a person in corporation service appointed or promoted during the period from the first day of January 1972. to the fifth day of July, 1977, may be removed from service of reverted to his lower post or grade, as the case may be. without notice, by the President "'or a person authorised by Slim in this behalf on such date as the President. or as the case may be. the person so authorised may. in the public interest direct/' The undeniable fact in the pessent case is that the petitioner is a corporation and the respondent No. 3 is a person in service of" the corporation which was registered on the 22nd of August 1974. a date after the 1st day of January. 1972. The respondent was employed b> the petitioner on 20-1 [-['976 The result is that his case would be hit by Section 3 of the Ordinance XIII of 1978, His removal from service would be deemed to be removal by a person authorised by the President and a remedy would be available t<> this employee under section 4 of this Ordinance which runs as under : "A person who is removed from .service of reverted to a lower post or grade under section 3 may, within fifteen days from the date of receipt of order of remove! or reversion prefer a representation to 'he Presedent: Provided thai, where the order of removal or reversion has been made by the President, such person may, within the time aforesaid, siibmh id the President a petition for reviewof the order". A plain reading of tins provision $ho\v\s that \vherj an action has been taken by the President himself a review would lie against that order to the President but where action is taken by a person authorised by the President ail appeal would lie to the President against the order passed by that authorised officer. In the present case dismissal is not challenged. Merely claim for unpaid wages is brought up by the Respondent No. 3 and the action was launched before the Respondent No. 2. a forum of exclusive jurisdiction to adjudicate this kind of dispute under the Payment of Wages Act. The learned ounsel however, contends that after the promulgation of Ordinance XIII of 78 this forum would not be available to respondent No. 3. Respondent No. 3 being - a person in corporation service" would be covered by provisions of Ordinance XJIi of 1978 and should seek redress from forums created under that rdinance, n .support of his contention learned counsel has relied on a few cases where the impact and efficacy of the new law has been examined. The first cases relied pon y the counsel is unreported judgment in C. P, D. 394 of 83. ' In this case an empknee of the Rice Export Corporation had riled a Constitution petition against the employer Corporation complaining that the employer were unlawfully deducting his pension which he was getting as a retired Government Officer from his salary in the Corporation. Preliminary objection was raised against the maintainability of the petition on the ground that the petitioner being an employee of a Corporation was to be treated as a Civil Servant within the meaning of section 5 of the Corporation Rnpolyees (Special Powers) Ordinance 197 8. Objection was
Jstained. Dismissing the petition as not maintainable it was held that the remedy available to the petitioner was- provided under section 5 of the Ordinance XIII of 1978.
\U 1985 Karachi 228 \ U 1985 Karachi 228 Present ; munawar ali khan, ,1 MUHAMMAD QASIM-Appellant versus
Mil. AKHTARI BEGUM-Respondent 1st Rent Appeal No. 471 of 1981, decided on 4-12-1984. (i) Evidence Act, 1872 (I of 1872)
Ss. 114 & 13?Cross-examination- Failure to put specific ques tionEffect ofRespondent not only denying allegation of raising of construction n his written statement but also repeating his denial in his affidavit-in-evidence Case of respondent also supported by evidence of his neighbouring usinessmanHeld : Case of appellant not to stand proved in relation to said construction merely because of no question having been put to her attorney in ross-examination. [P. 23Q]A (ii) Sind Rented Premises Ordisaaee, 1979 (XVII of 1979)
S. 15 (2)(iv)Acts likely to impair utility of premisesGround for eviction ofHeld : Unauthorised alterations and additions by theruselves to provide no ground to landlord for seeking ejectment of tenantHeld further : Landlord to essentially show such additions and alterations likely to impair material value or utility of premises before seeking ejectment on ground of such additions and alterationsChange of flooring made case in not shown to have ad versely affected value or utility of shop in questionHeld : Tenant not to be evicted from shop on basis of such charge. [Pp. 231 &232j£, C&E (Hi) Sind Rented Premise Ordinance, 1979 (XVII of 1979) S. 15 (2) fiv)Additions and alterations, in premisesEffect of Held : Additions and alterations made without consent of landlord to be no ground for ejectment of tenant unless same be shown to have impaired value and utility of property. [P. 232JD PU 1982 SC 145 ; PLD 1983 Kar. 162 & AIR 1950 Nag. 60 ref. Mr. Mansoor-ul-Arfin, Advocate for Appellant. Mr. Suleman Kassam, Advocate for Respondent. Date of hearing : 2-12-1984. judgment This appeal has arisen from the order of IXth Senior Civil Judge & Rent Controller Karachi, dated 31-8-1981 whereby the ejectment applicationfiled by respondent/land lady, Mst. Akhtari Beguna was allowed with direc tion to the appellant/tenant, Muhammad Qasim to handover vacant and peaceful possession of the premises in dispute to the respondent within 9 days of the order. The facts of the case in brief are that the respondent Mst. Akhtari Begum filed an ejectment application on 10-1-1980 seeking ejectment of the appellant Muhammad Qasim from the disputed shop bearing No. 1, 2/230, Commercial area, Latifabad Karachi on two grounds : namely, first, default in payment of rent for the months of September and October 1978 and second, making of unauthorized additions and alterations in the premises, impairing the value and utility of the disputed shop. The application was resisted by the appellant who denied both the above allegations. He however, added that with a view to beautify the shop he had laid mosaic flooring in place of original flooring. The learned Rent Controller after considering the evidence led by both the parties decided the issue relating to defauit in payment of rent in the negative. However he allowed the ejectment application on the ground that the appellant had carried out major alterations and additions without permission of the landlady which had the effect of diminishing the value and utility of the shop. It is against the said order of the Rent Controller that this appeal has been filed. After hearing the learned counsel for the parties the appeal was allowed by short order dated 2-12-1984 for reasons to follow. Following are the reason in support of the short order. The arguments addressed at the bai were confined only to solitary point whether the appellant had carried out alterations and additions in the dis puted shop and if so whether the same had impaired the value and utility of the shop. The burden of proving this point was obviously cast on the respondent. His plea in the ejectment application as regards alterations and additions is couched in the following words : "That the opponent has carried out additions and alterations with out the consent and permission of the applicant landlady, most objectionable alteration is that the opponent has raised construc tion of a small platform (Chabootra) in front of the shop measur ing 2$ X 9'. That the opponent has also impaired the utility of the tenaroent by breaking the floor of shop 8" deep and that too, without any written permission and consent of the landlord. That on 21 September, 1978 the oppoent took away the overhead shutter cover of the shop and after breaking the walls further raised construction of a terrace without the knowledge of the applicant," In support of the above pleadings the only witness produced on behalf of the landlady is Abdul Aziz, her husband and attorney. In his affidavit in evidence Abdul Aziz has more or less repeated the allegations made in the ejectment application as follows : "That the opponent further more raised construction on a small platform (Chabootra) in front of the shop measuring 2i' x9' without consent and permission of the landlady. I shall produce the copy of photograph at the time of cross-examination. The opponent did further impair the utility of the tenament by break ing the floor and setting up terrace and shutter without consent of the applicant. These additions and alterations were carried out on 21-9-1978. Hence the opponent is liable to ejectment".On the other band the appellant Muhammad Qasim apart from himselfhas examined Abdul Razzaq. According'to appellant the allegations of the alterations and additions attributed to him are net correct. However it is admitted by him that fee has replaced the original flooring by mosaic flooring, aad for this change he had the blessing of the respondent.As slated above the respondent/landlady's plea as regards additions and alterations as contained in her ejectment application was : firstly that Ac appellant bad constructed a small, platform (chabootra) in front of the shop ; secondly that the appellant had broken the floor of the 8 deep ; and thirdly that he had removed overhead shutter cover of the shop and after breaking the wails bad constructed terrace,. She has sought to prove these allegations bj the evidence of Abdul Aziz, her husband and attorney. How ever the appellant has denied that he has made any such alterations and additions excepting the change of flooring of the shopi which he has done to beautify the shop, His evidence finds support from his witness Abdul Razzaq who has stated in his evidence that although he has been seeing the appellant so occupation of ths shop for more than 10 years, he has not witnessed any change its the shop excepting the replacement of the original flooring wilti mosaic flooring. Thus as for construction of chabootra and terrace there is only word against word. It is therefore difficult to hold that the appellant has raised these constructions. The learned counsel for the respondent submitted that since no question was put to Abdul Aziz the respondent'^ wiinesj in cross-exaruiaation, his evidence with regard to the said two coKsirsjti'oos has gone unchallenged and therefore it is proved from his evidence that both Chaboc^ra and terrace were got constructed by the appellant I ?.tn afraid I cannot endorse such thinking. The appellant has sot oaly denied the allegations of raising these constructions in his written statement but fcas also repeated bis denial in his affidavit-in-evi-dence. Fuithermore he also finds support from his witness Abdul Razzaq who is his neighbouring businessman and is obviously free from acy bias, the face of such evidence r merely because no question was put to the husband and attorney of the landlady in cross-examination touching on the constructions, that would not oiean that the case of the respondent stood proved in relation to the said constructions. I am of the considered view that the respondent has failed to prove that the appellant was responsible for construction of chabootra and terrace.Coming to the change brought in the flooring of the shop the appellant has no doubt admitted having replaced the original flooring by mosaic flooring. His explanation for such replacement was that it was done in order to beautify the shop. Although he has also added that ths change in the flooring was made with consent of the respondent yet there is nothing to indicate that the respondent had given his conseot for the replacement of the flooring. The question arises if unauthorised alterations made in the flooring would render the appellant liable for eviction from the shop. To answer this question it will be advantageous to reproduce the relevant pro vision of Sind Rented Premises Ordinance 1979 (hereinafter referred to the said Ordinance). It reads as under : "15(2) The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that the building.'The other authority cited by the learned counsel for the appellant to re-enforce his arguments on the sams point is reported as Haji Fazal Elahi v. Sh. Mohammad Aynb and others (PLJ 1982 SC 145). In this case the landlord failed to discharge oous'of proof cast upon him to establish the allegation that tenant has caused damage to the property by using baih rooms and laterines in such a way that water leaked towards lower floors. Therefore the conclusion that condition of ihe building has materially deteriorated was held as not correct, The third case on the same point that has been cited on behalf of the appellant is from Indian jurisdiction. It is reported as S. M. Saritri De?i v. U. S. Bajpai and another (AIR 1956 Nagpur page 60) wherein it wa; held : "In the instant case the petitioner has raised a temporary shed which did not alter or demolish any part of the house except a portion of the front compound wall. So far as the erection of the temporary shed is concerned it cannot be said to be an act of waste in the sense in which it is understood in law. !n Jones v. Chappeai [(1875 20 Eq. 539 (A)], it has been held by Sir G. Jessel, M. R. that an erection of a building made by a lessee on the demised land without the consent of the lessor does not amount to an act of waste, The question of waste, therefore, will only arise in connection wish the part of compound wall that has been demolished," t appears from the above authorities that additions and alterations made withoat consent of the landlord alone cannot be the ground for ejectof-the tenant unless it is hown farther that such additions and alterations had damaged the property inasmuch as the value and utility of the property 'has been impaired by reasons of such changes. Since the only change of flooring made in the instant case is not shown to have adversely affected the value or utility of the disputed shoo, th; appellant cannot be evicted from the shop on the basis of such change. In view of the above findings the appeal was allowed with no order as to costs. Appeal allowed.
PLJ 1985 Karachi 232 PLJ 1985 Karachi 232 Present : abdul razak A. thahim, J MOOSA BHAI, Represented by Legal RepresentativesAppellant versus YOUSUF and AnotherRespondents Second Appeal No. 93 of 1977, decided on 13-5-1984. (i) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)
S. 13EvictionApplication forCo-owner Competency tofileCo-owner filing ejectment aoplication without obtaining consent of other co-ownerHeld : Objection about non-maintainability of application not to be sustained. [Pp. 234 & Mr. Suleman Kassjffl advocate appearing i'or the respondent No, 1, has argued that respondent ha asked for a reel of the portion beanng No. G/2. which is a separate portion and specifically this -a-j given to the respondent independents)' therefore there is to .need for Sling the suit for the partition. He further submits that in para, 4 of the original rent appli cation Bied on 17-10-1972, sp»licant had served a notice dated 27-12-1972, intimating of the transfer and requiring payment of real to the extent of 2/Mh share of his pcrtica in terms of deed of tenancy therefore require ment of notice under Sectk/a 30 has been complied with, He is also of the opinion that e%'ea for the sake of argument notice under Section 30 was not served, the rent application can be considered as a notice. He has relied upon cases reported in PLD, 1983, Kar. Page 419, 1979 C.L C. Page 46 and 229, 1981 S. C.M R. Page 193, ?982 N L.R. (Appeal Cases) Page 39, 1981 C.L C. Page 1153, P L,D. 1984 Kar, Page 135, P.L.B. 19s 1 Kar, Page 88. 1980 S.C.M.R, Page 339, 1978 S.C.M.R. Page 14, and P.L.D. I97S Lah, Page 193, 5. Now I proceed to discuss the contentions raised by learned counsel or the parties and the case law cited by them. The first point for consideration is whether compliance of Section 30 Displaced Person has been made if not what will be the effect. 6. The learned Advocate for the appellant has relied upon the cases f Gotar iegnara vs. Mst. Siara Bibi reported in 1972 S.C.M.R. Page 25S. a thai case notice under Section 30 was sot served and Supreme Court et aside the order of the trial Court and rsmaaued the case back. Oa the ther hand the learned Advocate for the respondent has relied upoa .L.D. 1981 {Car. Page SI, where it has been held that the application puld not be dismissed merely on technical ground and the very fact that jectment application is filed is sufficient to meet the compliance of notice nder Section 30 of the Displaced Persons Act. In another case reported inP.LD. 1984 Kar, Page 135, it 'nas been held that after expiry of 3 years of filing of rent application, it would not be just and proper to dismiss the application oa the ground of non-service of notice, and on he same point reference could be made to P.L.D. 1978 Lah. Page. J93. where it has been observed that ejectment application is considered as otice under Section 30. 7. In this case in Para . 4 of the application it is specifically mentioned hat on refusal of ooponent No. 2, for a joint action the applicant has erved a notice dated 27-12-1972, intimating of the transfer and requiring ayment of rent to the extent of 2/th share in terms of his transfer Deed/ ocuments, In the written statement the notice referred above has not een denied. in light of the above case law and the facts of this case, the ompliance of Section 30 has been made and appellant cannot take benefits f this technical objection. 8._ The next point is whether one partner can file ejectment applica tion without the consent of the other co- owners, refer to a case reported in S979 C L C. Page 229, where it has been held that any owner with consent of other owner can file ejectment application. .According to' 1981 S.C.M.R Page 193 any co-owner can file Rent Application. In another case of Mst. Safia v/. Abdul Sattar reported ?n P.L.D, 1983 Kar. Page 419. the same view has been followed. The objection about non-maintainability of the appSicatioa cannot be sustained. Moreover in the present case the! respondent has produced documents during the proceedings which showf that premises G/2 are independent and that portion of the bungalow has been transferred to the respondent. The learned Additional District & Sessions Judge in his order has fully discussed this point and came to the conclusion that both the tenaments Nos G/2 and G/3 of the Buargiiow stand transferred to the respondent. Therefore the appellant became « statutory tenant of the respondent and, his findings are that there exist relationship of landlord and tenant between the parties. 9. In view of the above circumstances I am also of the view that the rent application is maintainable and the compliance of Section 30 of Displaced Persons Act has bean made. It is admitted fact that appellant has failed to pay the rent to respondent who is the owner of the 2/ith share independent portion of the bungalow. Therefore I maintain the order dated 21-2-1977 of the Additional District & Sessions Judge, Karachi whereby he has directed to appellant to handover premises within 3 months to the respondent However, looking to the circumstances of the case I, allow three months time so appellant to vacate the premises ar.d hand over the same to the respondent. in case he fails to do so be may be evicted without any further execution proceedings, (SHR) Appeal dismissed,
PLJ 1985 Karachi 235 PLJ 1985 Karachi 235 Perestnl : munawar ali khan, J- Mst. HOOR BAIAppellant versus WARTS MASOODRespondent. First Rent Appeal No. 245 of 1980, decided on 1-34984, (i) Siai Eeatgi Premises OrftBM.ee, 1979 (XVII of 1979)~Ss. 19(2) & 21 Ex-parte orderSetting aside ofApplication forRent ControllerJurisdiction ofHeld : Rent Controller being competent to go into question of service of notice, exports order to bs oomp:tently sat aside in case of bis coming to conclusion regarding there being no satisfactory proof of service of notice on applicant. (P. 1M\A 1982 S C M 1. 570 & 19E3 CLC IBS rej\ (It) Rented Premises OriinsEcc, 1979 (XVII off 897f)~- Ss. 2S&19 (2)-~Ex-pane orderSetting aside ofApplication forOrder onAppea?. against Competency of Appellant first approaching Rest Controller for setting aside ex-partg order passed against himRent Centoiler, however, dismissing applica tionHs'ifl : Impugned os'tie:>: having become fin?.i oae, gappeal to be competeat. [P, 23aji Mr, A. Laiif.. A, Shakcar, Adv Mr, A. JUDGMENT definite finding for the purpose of setting aside the «x parts order. There is ao doubt that the learaed Rent Controller has not considered this expect of the case nor has he based his order on such reasoning. The impugned order passed by him shows that he did not go into the controversy as to service of process on the appeilsat before he passed the ex parle orciir. On the other hand, the learned counsel for the respondent has -ontended thai appeal against the Impugned order is no^maintainabl? or he reason that it is not directed against the final order within the meaning of {section 21 of the Rent Ordinance, The argument is obviously ejroueous. fin view of what as been stated in the foregoing paragraphs, it was within lihe right of the appellant to first approach the learned Rent Cent-oiler jfor setting aside the tx parts rder which he obviously did, Hc^evsr his appicaticn did not find favour with the learned Rent Controller, who dis- |niissed the same by the impugned order. Thus he mpugned order became khs final order in terms of section 21 of the Rent Ordinance. In view of above the appeal was allowed by short order dated E" 7 -2-1984 for reasons to be recorded separately. Above are the reasons for -;be said order. As per short order the case was remanded to the learned Rent Controller with the direction to hear the same atresh from the stage where tx pane order dated 29-4-1979 was passed by him, by giving reason able opportunity to both the parties for leading evidence if any. The parties were directed by the same order to apoear 'before the learned Rent Controller on 24-4-1984." (MIQ) Appeal allowed.
PLJ ins
PLJ ins 238
Present :
K.A.
guam
, 3
Messrs.
UNITED ORIENTAL STEAMSHIP COMPANY, Karachi and 2
OthersPiatntsfls versus, national shipping corporation, KarachiDefendant
Suit
No. 231 cf 1912., decided on 18-10-1984.
CifiS
Sail
Maintainability ofOwnership of two vessels iavoivsd ia accident subsequently vesting in Pakistan' National Shipping
Corporation, by operation of law Such Corporation also only person entiiJed to pro secute as w«!i as defend sure on its own right--Ifeli ; No jpersc-- having acy right In law to maintain action against feimseff, suit no iooger to be continued Held farther : Plaintiff seeking to enforce right of action againil ilsc'L suit to be absurdity anil nclonger maintainable same to be disposed of accordingly
[Pp. 239 &"240)4, B&C
( 1877} 3 AC 279 & 150 ER 725 ref.
jlfr, Sgbaf
Siddiqui, Advocate for Piaintifl.
JUDGMENT
Ta>$ sail ws mstilmatt on 21-10-!972
S by the pUinMs, a firm trading uoder the aame of United Oriental Shipping Company aocl its partner, agaiast the National Shipping Corporation for recovery of
R». 3.30,383,63 on account of exoenses aad damages suffered as a result\f collision which lock place on 23-^0-1970 between S.S. "Aawarbaksh"" a vet
PLJ 1985 Karachi 287 PLJ 1985 Karachi 287 Present : saeeduzzaman siddiqui , J MUHAMMAD ASHRAF and 6 Others-Appellants versus Haji MUHAMMAD AHMED, (deceased), represented by legal heirsRespondents Second Appeal No. S90 of 1981, decided on 29-1-1985. (i) Urfws Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)- --S. 13 (2)(i)EvictionDefaultGround ofHeld : Rent Control- Iff act to be bouad to pass order for ejectment qf tenant in a,U cases, where default in payment of rent be proved Discretion in such cases, however, to be exercised judiciouslyDefault alleged against tenant found to be neither wilful nor deliberate Held : Rent Controller to be competent to refuse to make order of eject ment against such tenant. [P. 2$l]A (II) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)
Ss. 13 (2) (/) & 15EvictionDefaultGround ofDiscretion- Exercise of Interference with Exercise of discretion by Rent Controller or first appellate authority not found to be perverse arbitrary or capriciousHeld : Second appellate authority normally not to interfere with such exercise of discretion. [P. 291 ]B (iii) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)
Ss. I3(2)(/)& 15EvictionDeaultGround ofDiscretion- Exercise ofSecond appeal-Interference withPurely question of fact resolved in favour of tenant by two courts belowNo perver sity n appreciation of evidence or misreading of evidence by two courts in arriving at conclusion appearing on recordHeld : Dis cretion exercised by two courts in favour of tenant being neither rbitrary nor erviso, no interference to be called for in second appeal. [P 291]C (iv) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)
Ss. 13 (2) (i) & 15EvictionDefault-Ground ofDelay of ten days in payment of rent found to be not wilful by two courts below Responent also found to be tenant for over 30 years regularly paying rant to landlordHeld : Exercise of discretion in favour of respon dent not to be described as perverse, arbitrary or based on irrelevant considerations. [P. 292]D Mr. Naqvi Mirza, Advocate for Appellant. Mr. Saghir Hussain Jafri, Advocate for Respondent Dates of hearing : 9, 15 & 16-1-1985. judgment This appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is filed by the appellant landlord against the order of first appellate authority dated 21-10-1981 confirming the order of Rent Controller dated 13-2-1971 passed in Rent Case No. 1861/73 dismissing the application on the ground of default filed by the appellant against the respondent. 2. The appellant filed ejectment case against the respondent for his eviction from shop No. S. B. 4/55, Bla'nkin Street, off Somerset Street, Saddar Karachi, on the ground of default in payment of rent from May 1973 onwards. The rent case was filed on 9th August, 1973. The respondent in his written statement denied that he has committed any default in payment of rent and contended that for the two years the appellant used to recover the rent from the respandent after every two months. It was also contended that according to ths practice appellant nd. 1 used to come himself to collect the rent fram the app3llant and therefore, he should have come to collect the rent on 31st July, 1973. However, as the appellant No. I djd. not come to collect the rent the opponent sent his son Farid Ahmed to appellant No. 1 with the rent for two months which the appellant No. 1 did not accept on the excuse that he has no receipt book at that time and that he will himself come to the respondent's shop for collecting the rent as soon as the rent book is available. It is further alleged that after waiting for 2/3 days the Respondent's son again approached the appellant and offered him rent but he declined to accept it on the same excuse, Thereupon the respondent sent the rent by money order on 9th August, 1973 but it was refused by the appellant. Again on 23rd August, 1973 rent for 3 months was sent but it was also refused. The respondent thereafter started depositing rent in court from 2-9-1973. The Rent Controller after hearing the parties came to the conclusion that the default alleged against the respondent was not wilful and deliberate and that the respondent being a tenant for the last 30 years in the premises and the rent having been recovered on several occasions in lump sum it was possible that the respondent was misled by the past practice. The following reasonings were given by the Rent Controller while exercising discretion in favour of the respondent :-- "It is a matter of record that opponent sent the rent through money order (Ex. O. 15) on 9th August, 73 that means only after 10 days from the period provided under Law. Since opponent is tenant of the applicants from last 30 years and had been paying rent in lump sum and it has been stated by the opponent that applicant's youger brother used to come to collect the rent and this appears me to be correct therefore, in my opinion the opponent might have remained waiting for the brother of PW Asbraf to come to collect the rent. The sending of money order leads me to presume that the deceased opponent Muhammad Ahmed had sent his son to pay the rent and on refusal by the applicants he had sent this money order otherwise it does net appear proper to send rent by money order just after a day of filing of this case. The amount of rent is so petty i.e. Rs. 35/- that it is difficult for me to believe that the opponent would had refused to pay the rent. In view of the above discussion and keeping in view the fact that in past rent of several months had been paid in lump sum and together and it has not been stated by applicants that in past applicants also filed any ejectment case against the opponent on the ground of default. I am of the considered opinion that it will be against the spirit of law and justice to hold the opponent as a wilful defaulter because there is only a delay of 10 days in payment of rent for the May of 1973 and there is no delay for the payment or tendering the rent of the subsequent months i.e. June 73 and others and in view of the above discussion I am of the consi dered opinion that it is a fit case where the Rent must and should exercise his discretion judicially in favour of tenant. Findings on this issue accordingly." On appeal the first appellate authority agreed with the Rent Controller that the default alleged against the respondent was not wilful and refused to interfere with the discretion exercised by the Rent Controller in favour of respondent The following reasons were advanced by the first appellate authority while refusing to interfere with the discretion exercised by the Rent Controller in the case in favour of the respondent: "The tenancy between the parties exists since last 30 years. The default if any is for only 10 days. The respondent has been paying the rent regularly in accordance with wishes of the appellants. The appellants have no complaint that the respondent is habitual defaulter. Not a single instance was quoted by the appellants showing that at any time the respondent had commited default in payment -of rent prior to this one. In such situation the default does not appear to be wilful. In these circumstances respondent can be under a genuine impression that since the payment of rent js periodically and is collected by the appellants, a few days delay in payment of rent would not be considered default. Since the rent controller did not find the default to be wilful hence he refused to pass order of ejectment. In the given circumstances of the case I am of the opinion that the learned Rent Controller has rightly exercised the discretion judicially. There is no justification for me to interfere with exercise of discretion by me". The learned counsel for the appellants contends that the default for the month of May, 73 was established beyond doubt and the plea of the res pondent that the rent was being collected for two months at a ime should not have been accepted by the courts below in view of the decisions in the cases of Mrs. Alima Ahmed v, Amir Ali (PLJ 1984 SC 241) and Syed Waris All Tirmizi v. Liaquat Ali (1980) SCMR 601. In evidence before the Rent Controller the respondent produced several rent receipts issued by the appellant which are Exhibited as 0/4 to 0/13. These receipts do show that the rent of the premises was being collected by the appellant from 1971 to 1973 for two months each time. The details of these rent receipts are as follows : S. No. Date of receipt Month for which rent collected Amount 1. 14-10-71 Sept. and Oct., 71 Rs. 68/- 2. 8-11-71 Nov. and Dec., 71 ? J 3. 13-1-72 Jan. and Feb., 72 ») 4. 6-3-73 March and April, 72 5 > 5. 17-5-72 May and June, 72
J 6. 18-7-72 July and August, 72 J J 7.. 4-11-72 Sept. and Oct. 72 J 8. 15-1-73 Nov. and Dec,, 72 )J 9, 15-3-73 Jan. and Feb., 73 J 9 10. 31-5-73 March and April, 73 A perusal of above receipts will show that the rent from 1971 till immediately before filing of the ejectment application was paid by the respondent for two months each time but all these payments were either within time or were made in advance. Therefore the plea of respondent that the appellant used to receive two months rent after expiry of two months does not find support from the evidence on record. However the discretion in favour of the respondent was exercised by the two Courts below not only on the obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations. Thus, for instance, a tenant would be entitled to the benefit of discretion under section 13 if hs was not able to trace his landlord's whereabouts despite reasonable efforts or if there was genuine dispute about the landlord's title. Again, if he has been regular over a long period of years in the payment of rent but through inadvertance falls into arrears for two or three months, he should be entitled to discretion in his favour because even a reasonable man can sometimes through inadvertance over look his obligations. Similarly, the case of tenant who can prove an estoppel or an agreement to pay rent at long intervals is much stronger. However, merely because a tenant has on a few occasions been allowed to pay rent "at intervals of time", this cannot possibly entitle him to invoke discretion under section 13. After all, if he is allowed to fall into arrears this is an indulgence on the landlord's part, and the recipient of an indulgence cannot claim any right or equity to its continuance. Similarly as the said Ordinance imposes an obligation on the tenant to pay rent as it: falls due, he cannot be allowed to escape this obligation by invoking discretion." A close reading of the above passage will however, show that there could be cases where a tenant has been regular in payment of rent for a long period but through inadvertance fell into arrears of rent for 2 or 3 months at one time and in such cases the Rent Controller could validly exercise discretion in favour of tenant. In the present case the rent for the months of of May, June and July, 1973 was remitted on 9th August, 1973. The remittance of rent on 9th August, 1973 was within time in so far the rent for June and July was concerned. However the default if any, was only in respect of the month of May, 1973 and that too was only for ten days. The two courts below took into consideration this delay and looking to the circumstances of the case that the respondent was a tenant for over 30 years in the premises and has been regularly paying rent to the appellants, they reached the conclusion that the default was not wilful. The courts below also held that the respondent waited bonafidely in view of the past practice for the appellant to come and collect the rent. The exercise of discretion on these considerations by the courts below in favour of respondent could not be described as perverse, arbitrary or based on irrelevant considera tions. In view of the above discussion I am of the view that no case for interference is made out in second appeal with the discretion exercised by the two courts below in favour of respondent and accordingly dismiss the appeal but leave the parties to bear their respective costs. (MIQ) Appeal dismissed.
PLJ 1985 Karachi 298 PLJ 1985 Karachi 298 Present: abdul razak A. thahim, J BRITISH INDIA STEAM NAVIGATION COMPANY LIMITED, London and AnotherPetitioners versus NATIONAL SECURITY INSURANCE COMPANY LIMITED, LahoreRespondent Mise. Application io Revision Petition No. 253 of 1976, decided on 23U-1984. (i) CfrU Pr«e4«re Cede, 1908 (V of 1908)-
S. 1 15Civil RevisionDismissal in default ofRestoration Civil Procedure Code containing no provision forrestoration of revi- ' stonHeld : There being also no provision for dismissal of such peti tion due to noa-prosecutiofl , restoration to be considered on principles of natural justice. [P 299 M (ii) OrH Procedure Cede, 1908 (V of 1908) ^-S. 115Civil RevisionDismissal in default ofRestoration of Stiffieieni cause forOood cause shown for restoration of revision petitionFifing of fresh revision also not barredHeld : Revisionto "be restored to its original number and position in interest of justicefP. 29V]B & C ' 1911 SCMR 740 ; PLJ 1981 SC 875 ; PL/ 1975 Lab. 311 ; PLD 1972 Lah. 5J4 ; PLJ 1982 Lab. 25Q>& C. R. 247 of 1980 (decided on 23-4-198,1) ref. Mr. Ibrahim Peshori, Advocate for Petitioner. Mr Imtiaz Ahmed Lari, Advocate for Respondent. Dtte of hearing : 15-4-1984. order This "Revision Petition" No 253 of 1976, filed by petitioner. British India Steam Navigation Company and other against respondent National Security Insurance Company Limited was dismissed in default 19-2-1984, when none appeared on behalf of the petitioner to persue the petition. Mr Imtiaz Ahmed Lari, learned counsel for the respondent was however present on that day i.e. 19-2-19S4. Mr. Ibrahim Peshori learned counsel for the petitioner filed application under Order 41 Rule 19 read with Sec tion 151 C. P. C. On 20-2-1984, supported by an affidavit in which he prayed that this revision be admitted for regular hearing Notice was issued to the respondent for this application and on 15-4 1984, it was heard. The learned counsel for the respondent contended that the Civil Revi-sion can not be re-admitted or restored. His contention is that application under Order 41 Rule 19 is not maintainable in law as this provision speci fically relates to the restoration of the appeals. He has relied upon cases of M/s Ghani Sons Industries Limited, Karachi v. Mirza Akbalque Ahmed reported in P. L, D. 1974, Karachi page 339 and a case reported in A. I, R. 1945, Mad. 103 On the other hand Mr. Ibrahim Peshori, advocate for the petitioner, submitted that a revision petition dismissed in default could be restored if sufficient cause is shown for non-appearance of the petitioner. In this connection he placed reliance on cases of Municipal Committee Jehlum v. Moulvi Muhammad Sharif reported in 1971 S C. M R. page 740, Jan Mohammad v. Muhammad Asghar, reported in P. L. J. 1981 S. C. page 875, P. L. J. 1975 Lah page 311, P. L D 1972 Lah. page 514 and unreported case in Civil Rev No. 249/1980 Muhammad Arbab & others v Jaffary Muhimmad Hussain decided by the court on 25-4-1982, and P. L. J. 1982 Lah. page 250. In the case of Ghani Sons Industries Limited, Karachi v. Mirza Akhlaque \hmed, reported in P. L D. 1974 Karachi page 339, it was held revision petition dismissed in default for non-appearance cannot be restored by resorting to the Section 151 C. P. C. Similarly ' same view is taken in A. I. R, 1945 Mad. page 103. Regarding case reported in P. L. J. 1981, S. C. page 375, it is stated that restoration of revision application be determined in peculiar circum stances of each case when sufficient cause is shown and this case was remand ed back and point which is involved in this case about the maintainability of the restoration application was not pointed out nor discussed. Regarding case of Municipal Committee Jehlum v. Moulri Muhammad Shafl, reported in 1971 S C. M R page 940, the facts in that case were that an application seeking temporarily injunction, was dismissed for non-prosecution and it was held that there is no legal bar to renew the application. Supreme Court ha not allowed the restoration but observed that Order 9 Rule 3 & 4, which v. ill attract and permit the institution of fresh application or setting aside the dismissal order and it is left petitioner to choose any remedy. In cases reported in P. L. J. 1975 Lah. page 311 and P. L. D. 1972 Lah. page 54, application for restoration of applications were allowed by the Courts but «> these matters pertain to Settlement Cases. The revision petitions were restored in the cases reported in P. L. J, 1982 Lah. page 250, and un reported case of this Court in Civil Revision Petition No, 248/80 decided on 25-4-1982. 1 am of the view Order 41 Rule 19 is not applicable. The important aspect of this case is that there is no specific provision for the restoration of Revisions in Civil Procedure Code. On the other hand there is also no
provision for dismissal of Civil Revision due to non-prosecution. In these circumstances I, feel that on the principles of Natural Justice, the restora tion could be considered. There are different views of the courts as dis cussed above. Mr. Kazmi learned counsel has no objection on merits as 2 he has frankly stated that there is personal affidavit of advocate and good is B If t use has been shown but he has taken only legal plea is dismissed there is no bar for filing fresh revision as Court in case reported in 1971 S. C. M. R. page 940. In these circumstances nd in the interest of justice, I, restore thei revision to its original number and position. The legal position is still notiC clear because there are different views. Mr. Justice Muhammad HaleemJ the then Judge of Sind High Court in the case reported in P. L. D. 1974 page 339 has discussed the entire case law on this point and I have no hesitation in accepting that view but Supreme Court in two cases mentioned above have remanded the case back. On the point of applicability of Order 41 Rule 19, or Order 9 Rule 13 and Section 151 C. P. C. in case of restora tion of Civil Revisions, the learned both the' counsel have not cited any relevant decision of Supreme Court where the Revisions have been restored under the provision of C. P..C. (TQM) Revision restored.
PLJ 1985 Karachi 300 [DB] PLJ 1985 Karachi 300 [DB] Present: abdul qadper & sved ally madad shah, JJ Syed RAZI HAIDER and AnotherAppellants versus WASI ALIRespondent High Court Appeal No 53 of 1979, decided on 26-5-1985. Civil Procedure Code, 1908 (V of W08)
O. IX, R. 13 & O, XVII, R. 2 read with Limitation Act, 1908 (IX of 1908)Art. 181 Ex pane decree passed on adjourned date of hearingSetting aside ofLimitation forDefendants appearing in court on service of summons of suit Ex-parte decree subsequently passed against them under O XVII, R 2, CPC on adjourned date of hearingApplication for setting aside ex-parte decree filsd after about seven months of passing of ex pane decree dismissed on ground of sam; bjing barred by limitation under Art. 164 of Limita tion Act, 1908Held : Ex pant, decree having been passed under provisions of rule 2 of Order XVII of Code of Civil Procedure, case to be governed by (residuary) Art. 181 of Limitation Act, 1908 (prescribing period of 3 years for filing application). (P. 304J/4 PLJ 198ISC 146 followed Mr. S. H. Rizvl, Advocate for Appellants. Mr. Saghir Hussain Jafferi, Advocate for Respondent. Date of hearing : 30-4-3985. judgment Syed Ally Madad Shab, J.This High Court appeal, under the pro visions of section 3 of the Law Reforms Ordinance, i972 is directed against an order dated 31st March, 1979, of a learned Single Judge in Suit No. 418 of 1975. Facts in the back ground may be summarised as under: 2. The respondent herein filed suit No, 4/8/1975 on 23-9-1975 for specific performance of an agreement dated 4-7-1975 for sale to him of a plot of land bearing No. B-97, Block No. 11, Federal 'B' Area, Karachi . The appellants herein filed written statement on 2-12-1973. Simultaneously, two applications, one under section 149 CPC for condonation of Jate payment of Court fee, and another-injunction applicttion u/O 39 Ruie 1 & 2 CPC, were under process for hearing. During the course of proceedings of the suit, the matter was set down in Court on 4-9-1977 for settlement of issues. In the meantime, the two interlocutory applications referred to above were placed ia Court for hearing on 28-8-19/7. The application u/s 149 CPC wes granted aad two weeks time thence-forth was granted for payment of Court fee ; and hearing of injunction applica tion was adjourned to 18-9-1977. It so happened that the appellants/ defendants did not appear ia Court on 4-9-1977 for settlement of issues. The matter was adjourned to 7-9-1977. There was no appearance by the appellants ever- on this adjourned date of hearing. The learned Judge seized of ihe eass decreed the suit exparte for specific performance of the contract of sale subject to deposit in Court of the balance of sale price within a month. the respondent filed execution application, a notice whereof was served on the appellants on 3-4-1978. They filed an applica tion under Order 9 Rule 13 CPC on 4-4-1978, for setting aside the exparte decree. A learned Single Judge, hearing the application, dismissed it by the impugned order dated 31-3-1979, which reads as under : "This is an application for setting aside the ex pane decree dated 7-9-1977 This application was filed on 4-4-1978 i.e. after the expiry of about 7 months but whereas the period of limitation is 30 days under Article 164 of the Limitation Act. In support of this application the learned Counsel who was then appearing for the defendant has stated as follows; in para. 6 and 7 of the affidavit : "6. That the matter did not appear in the cause list of 18-9-1977 and I thought that the same must have been discharged. 7. That on 3-4-1978 I was served with an execution notice in Execution No. 6/1978 wherein it transpired that the above suit was decreed and the Plaintiff has moved this Hon'ble Court for execution of the deed of sale by the Nazir. The said notice was served on me at about 11 a.m. and I immediately rushed to this position." "It may be observed that on 28-8-1977 the plaintiff was granted one month's time to pay the Court-fee and that the case was adjourned to 18-9-1 77 for hearing of MA 1932/75. It appears that the Plaintiff paid the Court-fee before the above date and the matter was fixed for issues on 4-9-1977, in Court. However, the case was adjourned to 7-9-1977. The defendant has not shown any sufficient cause as to why he did not appear either on 5-9-1977 or 7-9-1977 when the above case was listed in the daily cause list. Be that as it may, the question which requires consideration is as to whether the present application is competent and is not hit by Article 164. The explanation given by the learned Counsel for the defendant in the above two paras mentioned above is not sufficient to bring out this case from the purview of Article 164. It was the duty of the learned Counsel for the defendant to find out as to why the case was not listed on 18 9-1977, as was ordered by this Court in his presence. No explanation has been given. The application bas been filed after the expiry of about 7 months. It is an admitted position that S. 5 of the Limitation Act is not appli cable to an application under Order 9 Rule 13 CPC. This Court could excercise the power under its inherent jurisdiction provided l^ere was some mjstake on the part of the office of thjs Court which in my view is lacking in the present case. I, therefore, dismiss the application as time-barred." 3. The learned Counsel for the appellant has urged that the matter was set down in Court on 28-8-1977 when the plaintiff/respondent was allowed two weeks time for payment of Court fee, and earing of injunction application was adjourned to J8-9-1977, and the matter was, according to him, surreptitiously placed in Court for settlement of issues on 4 9-19 7. He has contended that the ppellants/defendants did not have noiice of this date of bearing as well as that of the next date of hearing viz. 7-9 1977 when ex pane decree was passed He has put forth ths plea that the riod f limi'ation in such circumstances started running from the day the appellants became aware of the ex parte decree, which was 3rd April, 1978 when notice of execution application was served upon them, and he application u/O 9 Rule 13 CPC for setting aside exports decree was Sled on the following day viz. 4-4-1978 and was within time. He has advanced alternative argument that the matter is not governed by Article 164 of the L mitation Act as held by the learned Single Judge but Article 18! of the Limitation Act, prescribing period of 3 years, would apply and the application u/O 9 Rule 13 CPC was well within ime limit in all circumstances. He has raiiance on cases repotted in P.L.J. 1981 S.C. at page 146. and P.L.D. 1970 K.ar. 295. 4. On the other hand, the learned Counsel for the respondent has contended that the matter was set down for settlement of issues on 4 9-1977 in normal course, and it was enlisted in the cause list for the ay and the parties to the suit did have sufficient notice of the date of hearing and yet there was no appearance by or on behalf of the appellants. He has pointed out that the learned Judge bearing the atter adopted abundant pre caution and adjourned the hearing to 7-9-1977 to provide a chance to the bsenting party to contest the suit. According to him, the matter was enlisted in the cause list for that ay as well and yet there was no appear ance from the appellant's side and the suit had to be decreed ex parte. As regards the question of limitation in making the application under Order 9 Rule 13 CPC, he as ontended lhat the matter falls within the ambit of Ariicle 164 of the Limitation Act, which prescribes period of 30 days from the date of decree for making an application for setting aside an fxparte decree, nd the application filed after seven months was time barred. He h«s urged that'delay in making'the application couid not be justified in any ease as the appellants could have known the passing of ex pane ecree latest by 18 9-1977, which was the date of hearing of injunction application. According to him, Article 181 of the Limitation Act is not attracted on the facts of the case. He has cited-PLD 1952 Lab. 56-; and P.LD 1962 Dacca 60 as the supporting authorities '' 5. It is evident from the impugned order, reporduced above, that the application under Order 9 Rule 13 CPC was dismissed only "on the ground that it was time barred. The learned Single Judge eld that the application was governed by Article 164 of ths Limitation Act and it r - having been filed after the expiry of about 1 months, was time barred. Article 164 of the Limitation Act prescribes eriod of 30 days for making on application for setting aside exparte decree, from the date of the decree in case summons of the suit has Been served on the defendent, and, in any o$S|er case from the date of he knowledge of the ex^parte decree. A question not covered by Article 164, Thai application may or may not be under section 151. It could still be under the iscond part of rale 33 of Order IX, though in some cases section 151 might also apply. When defendant makes an application under order IX, ruts 13 in connection with an ex parte dcctee, whk-h is not passed under rule 6 of Order IX (on the first hearing), it would not be governed by Article 164. But that would not necessarily mean that there is ao period of limitation for such an application. It is not essential hare to examine the effect of "null and void order" on the question of limitation ; is simple that where the defendant makes an application for seeing asidi, an ezpurte decree, w!>icli is not covered by Article 564, it would be- governed by residuary Article 184, aad the reriad of limitation would be three years from the accrual of She ritit to apply. Undoubtedly this period of limitation would be more than necessary in some of these applications, but so would be the case in several other applications covered by Article 181. It is for the Legislature to do the excercise of rationalisation, ia the light of experience gained during three quarters of century" 6. Of course, different view was adopted >a the cases, Kamaiiiddin v. Malik Muhammad Bashir & others (PLD 1952 Lab. 456) followed in the case Netai Sikari aad others v. Sashi Bfausan Biswas & others (PLD 1962 Dacca 60) relied upon by the learned Counsel for the respondent that once summons of the suit was duly served on the defendant and the exparte decree was pasted against him on an adjourned date of hearing, the application under Order 9 rule 13 CPC for setting aside the exparte decree would be governed by Article 164 of the Limitation Act. Both these case were referred to alongwith many other cases, ou the same point by the Hort'ble Supreme Court ia the aforesaid case reported in PLJ 1981 S.C. 146 and the rule reproduced above %vgs laid down that Article i64 of the Limitation Act would apply only in the case of exparte decree passeds under rule 6 (1) (a) of Order 9 of the Code of Civil Procedure and not. in the ase of an ex parif, decree pasgfd on the adjourned date of hearing under Ordcf 17 rule 2 CPC, Under rule 5 (I) (a) of Order $ of the Code of Civil Procedure, it is provided that the Court may pass ex parte decree if the defendant does not appear when the suit is called on for bearing provided it is proved that the summons was duly served on the defendant, whereat Order !7 rale 2 of the Code of Civil 'i^scedure provides that where on a day io svhieh the hearing of the suit is a.Vjov.rned, !v; partie-r. or any of them fail to appear, the Court may proeeM to dispose of the suit in one of the modes directed in that behalf by Order 9 at make such other order as it thinks ft. In Use instant case, the appellants/defendants did appear in Co«rt oa the bearing tue.y wcie served 'or with th« summons '' las sail and ttw ex pane decree -.vas pass?r! ..-'auist theta on au adjourned i&te of ^8&!';sg. In the light of the distinction magnified by the Hon'ble Supreme Court ;c the aforesaid case bctwecu the exparit dccrse passed undir tli« provisions of rule {" (1) (a) aad that passed undt-: the provisions of rals 2 of Order 17 of the Code of Civil P-ocsdnre, the instant case~ s'd be governed by Article IS! of the Liniilatio-:. Act' ?. For the reasotss recordfd ab-^ve, we ailow tue ^pi'ai sod Mi aside the impugned order dated 31-3-1.979 .in consequences thu'eof, the ,-^ ^plica tion Bade? Order 9 rale 13 CPC shall be placed, in scctreanee iviti?. roster of settings, for its hearing and decision on merits, la view of the question of Saw involved in the case, bo order is made for costs. (TQM) Appeal allowed.
PLJ 1985 PLJ 1985 305 (DB) Present : naimuddin & K. A, ghani, JJ GOVERNMENT OF PAKISTAN through Secretary, Ministry of Food & Agriculture Division. Food Directorate, KarachiPetitioner versus Messrs. RAFI ASSOCIATES LIMITED, Karachi and AnotherRespondent! High Court Appeal No. 37 of 1985, decided on 8-5-1915. (i) Limitation Act, 1908 (IX ef 1908) S, 5AppealDelay ia filing ofCondonation ofGovernment Entitlement to special indulgence Plea ofHeld : Mere fact of appellant being Government department not to entitle it to special indulgence (in respect of condonation of delay ia filing appeal) as compared with ordinary litigants, [P. 308]G I9o8 SCMR 115 & 1975 SCMR 92 ref, (ii) Limitation Act, 1908 (IX of 1908) --S. 5Delay in filing appeal Condonation ofSufficient' cause forCircumstances stated only disclosing case of inaction, want of diligence or negligence on part of appellantHeld : Court not to put premium on negligence, inaction or want of, proper diligence of appellant or its counsel by condoning delay in filing appeal, [P. 308]F (Hi) Limitation Act, 1908 (II of l<fG8)~ S. 5DelayCondonation of-He!4 : Delay of each day to be explained (by applicant). [P. 308[ J fiT PLD 1964 SC 236 & 1970 SCMR 558 «/. (sv) Liaaitailcia Aet, 1908 (IX of iS68) Ss, 5 & 12Belay in filing cf appealCondonation ofJudgment of Supreme Court Time spent ia obtaining copy ofCopy of judgment of Supreme Court aot required for filing intra court appeal under Law Reforms Ordinance, 1972 (XII of 1972)Held : Time spent iu obtaining such copy not to be considered as sufficient ground for condonation of delay. [P. 307]E (?) Limitation Act, 1908 (IX of 1908}- _Ss, 5 & 14 (2)Appeal-Delay in filing for~Condonatioa of Time spent sn prosecuting petition for leave to appeal Exclusion of Ignorance of lawPlea ofHeld : De'sv ia filing appeal in igno rance of law sb circumstances of particular case to fsrr<ih sufficient ground for condonation of drlsy provided there be bo negligence, inaction or want of good faith (on part of applicant) No care taken or attention paid to find out forum of appeal from judgment given by Single Judge of High CourtHeld : Gross lack of care having been shown in case in filing petition for leave to appeal in Supreme Court, time spent in prosecuting such petition not to be excluded. [Pp. 306 & 307] A, C&D PLJ 1979 SC 356 ; 1975 SCMR 259 & 1970 SCMR 656 rel. (vi) Advocate
Changes in lawIgnorance regarding Held : No advocate to bona fide claim that he remained ignorant of changes in law for more than nine years. [P. 307J/J Mr. A, R. Akhtar, Advocate for Appellant. Date of hearing : 8-5-1985. order Alongwith this appeal under Section 3 of the Law Reforms Ordinance, 1972, filed on 25-4-l?85, from a judgment dated 31-12-1980, passed by a learned Single Judge of this Court, an application under Sections5 and 14(2) of the Limitation Act, 1908, has been filed for condonation of delay in filing the appeal and for excluding the time spent in prosecuting the petition for Special Leave to Appeal in the Supreme Court 2. The relevant facts are that an award given in favour of respon dent 1 was made rule of the Court by a learned Single Judge of this Court by the judgment dated 31-12-1980. Aggrieved by the judgment and decree the appellant filed on 24-3-1981, a petition for Special Leave to Appeal, being petition No K-226 of 1981, in the Supreme Court. The petition was heard on 12-12-1984, and dismissed by the order of the same date, as would appear from a photo stat copy of the judgment of the Supreme Court (annexure "G") at page 85 of this record However, Mr. A. R. Akhtar states that the petition was heard on 27-2-3981, and the judgment was announced on 12-12-1984. The appellant therefore, seeks exclusion of the period from 24 3-198i to 12-12-1984, as according to the affidavit of Zaman-ur-Rehnsan, Superintendent of the office of the Director General Food at Karachi filed in support of the application the proceedings in the Supreme Court were commenced on the advice of the Counsel for the appellant and the appellant had ao reason to doubt that the proceedings by way of Civil Petition of Special Leave commenced were not valid and in normal course and that the appellant had awaited the decision of the Supreme Court in the said Petition. However, the deponent has neither given the name of the Counsel by whom and the name of the officer to whom the advice was tendered nor have the appellant produced any written opinion or letter of the Counsel or the affidavit of the Counsel in support thereof. Under section 14 of the Limitation Act 1908, the - period spent in prosecuting a proceeding could be excluded only if the petitioner bad prosecuted the proceedings in good faith in Court which, from defect of jurisdiction, or other cause of a like nature, was unable So entertain it. According to Section 1, sub-section (7) of the Limitation Act, 1908, nothing is dsemed to be done in good faith which is not done with dus care and attention. la this case othig has been shown what to Appeal was Sled aad dismissed by the Supreme Court could be excluded under Section 14 of the Limitation Act, 1908, still the period from 13-12-1584 to 25-4-19.85, could not be excluded as the appeal was not Sled even oa 3rd March !9iJ5, when the certified copy of the judgment cf ths Supreme Court was delivered bul if was filed on 25-4-1985,. and the explanation for delay of 53 days, as stated in the affidavit of Zamanur-Rahman, is that the appeal was sent to an advocate who after receipt of the relevant papers expressed his inability to act on behalf of the appellant. The case papers were received back which were again sent to Government advocate on 11-41985, who could not persue the matter for appeal. Thus it is claimed that the case papers between 5-3-> 985 to 11-4-1985, remained with the advocates who could not file the appeal. It is further stated that the appellant dapsndsd upja ths advice of its law yers and/or the Justice Division and could not on its own engage any counsel or file the necessary proceedings on its own. 7. In our view these are not sufficient grounds and if any advocate for the appellant was not prepared to file the appeal, he should not have been entrusted with the same. The circumstances stated only isclose a case of in-action or want of due diligence or negligence on the part of the appellant and we would be putting premium on the negligence or in action or want of proper diligence of the appellant or its ounsel, if we condone the delay even for this period. 8. It was then submitted by Mr. Akhtar that in the Government departments time is taken in obtaining instructions and preparation of the case. 9. The mere fact that the appellant is Government department does not entitle it to special indulgence in this respect as compared with ordinary litigants. If any authority is needed reference may be bad o the Supreme Court judgment in Commissioner of Income-Tax v. Ravi Textile and Carpet Company (1968 S. C. M. R. U5). Again in The Province West Pakistan v, Mian Muhammad Aslam and others (i975 S. C. M. R. 92) the Supreme Court reiterated that Govern ment is not entitled to any preferential treatment as compared to ordinary citizens in adjudication of civil matter. 9-A. It may also be pertinent to point out the following observation of the Supreme Court in Chief Settlement and Rehabilitation Commissioner and saotfaer v. Gtalata Gliaaa etc. (1974 S. C. M. R. 38). "This Court has always adhered to the view that in civil matters, delay in filing appeals or petitions, sa« in exceptional cases should not be lightly condoned, for a valuable right has accrued to the other party of which it cannot be deprived except for very substantial reasons. To make departments of Government exception to this rule would be placing a premium on the negligence and want of proper diligence in public offices." 10. Last but the least there is no explanation whatever for not filing jthe appeal from 12-4-1985 to 24-4-1985. It is well settled that delay of pleach day must be explained. See (1) Ata Ullab Malik v. he Custodian{Evacuee Property, West Pakistan and Karachi and others (P L.D 1964 S. C. 236), and (2) Proviace of East Pakisiais r. Abdul Ha mid Darji and offers (1970 S. C. M. R. 558). , 11. We therefore, cannot exclude the time either under Section 14 or under Section 12 of the Limitation Act, 1908, and we also do not find sufficient ground under Section 5 of the Limitation Act, 1908, to condone the delay and accordingly dismiss the application and consequently dismiss the appeal as being hopelessly barred by time. (TQM) Appeal dismissed.
PLJ 1985 Karachi 309 PLJ 1985 Karachi 309 Present : svbd haider ali pirzada, J MUHAMMAD SHAFI alias NANNEYAppellant versus SIRAJUDDIN and 3 OthersRespondents Second Appeal No. 5 of 1976, decided on 5-8-1984. (!) CiTil Procedure Code, 1908 (V of 1908)-
O. XL!, R.I.AppealForm ofDecree of trial courtFailure to fileHeld: Appellate court though empowered to dispense with filing of judgment, filing of decree not to be dispensed witn by such court. [P. 3i)]/f (ii) Civil Procedure Code, 1908 (V of 1908)
O. XLI, R. 1AppealForm ofDecree of trial courtDelay in filing ofAppellant applying for certified copies of judgment and decree in 6-.-1975Failure of copying department in supply copy of decree (on 29-1-1975) nspite of application contributing largely to delay in filing itHeld : Appellant not to be held responsible for laches of copying department. [P. 314]G (Hi) Civil Procedure Code, 1908 (V of 1908)- O. XLI, R. I read with Limitation Act, 1908 (IX of 1908) S. 12(2) AppealForm ofDecree of trial courtFailure to fileTime spent in obtaining copy Exclusion ofAppellant though applying for cer tified copy of judgment and decree, copy of judgment alone supplied Copy of judgment only filed alongwith memo, of appeal in bona fide belief that same to meet requirements of O XLI, R. 1, CPCSubsequently, appellant again applying for copy of decree and filing same in court on 20-2-1975Held : Whole of period between date of application for certified copy and date when decree actually signed to be excluded under S. 12 (2) of Limitation ActPreset tation of appeal on 20-2-1975, held further, to be in time. [P. 312[B & C (iv) Civil Procedure Code, 1908 (V of 1908)
O. XLI, R. 1 read with Limitation Act, 1908 (.IX of 1908)S. 12 AppealForm ofDecree of trial courtFailure to fileAppel lant initially not supplied with certified copy of decree of trial court Such copy consequently not filea alongwith memo, of appeal Respondent objecting to maintainability of appeal in absence of copy of decreeAppellant again applying for such copy and filing same subsequently Held : Failure of trial court to supply certified copy of decree (alongwith copy of judgment) k and negligence shown by office in examining defect in presentation ot appeal at initial stage having contributed substantially to unfortunate position, litigant to deserve to be protected against (such) default committed or negligence shown by court or its officers in discharge of their duty. [P. 312]£> (187) 3 PC 465 & PLD 1958 Kar. 159 rtf. (v) Limitation Act, 1908 (IX of 1908)
S. 5Delay in filing appealCondonation ofSufficient cause for DiscretionExercise ofNo negligence, inaction or want of bona fides imputed to appellantHeld : Liberal construction of expres sion "sufficient cause" to be adopted so as to advance substantial justiceHeld further : Discretion under S. 5 to be exercised in way in which judicial power and discretion to be exercised upon well understood principles. fP. 314JF (vi) Limitation Act, 1904 (IX of 1908)-
S. 12 (2)Decree of trial courtTime requisite in obtaining copy ofExclusion ofHtld : Expression "time requisite" [as used in S. 12 (2)J to mean all time (counted from date of pronouncement of judgment) properly required for getting copy of decreeDelay in preparing decree attributable to default or negligence of appellant Held : Appellant not to be entitled to exclusion of such period under S. 12 (2) of Act. [P. 313]E (vii) Limitation Act, 1908 (IX of 1908)
S. 12See : Civil Procedure Code, 1908 (V of 1908)O. XLI, R.I. [P. 312JJ, C&D Mr. S. Ansar ffussain, Advocate for Appellant. Mr, Sultman Kasim, Advocate for Respondent. Date of hearing : 21-5-1984. judgment This is a Second Appeal against the judgment and decree of Addi tional District Judge, No 11, Karachi, dated 31-10-1975 in a Civil Appeal No. 81 of whereby the learned Additional District Judge has dismissed the appeal of the appellant on the ground that the appeal was barred by limitation. The brief facts of the case are that the respondent had filed a suit No. 895 of 1971 against the appellant for recovery of Rs. 3000/- as damages for malicious prosecution. The suit was decreed on 4-1-1975 against the appellant. The record shows that on 6-1-1975, an application was made by the appellant for a certified copy of the judgment and decree passed in the said suit for recovery of Rs. 3000/- as damages for malicious prosecution. The application was granted on the same day. A certified copy of the judgment was supplied to him on 29 1-1975 but no copy of decree was supplied to him on 29-1-1975. The appeal was filed without the certified copy of the decree and only with the certified copy of the judgment. In due ourse the appeal was admitted on 17-5-1975. Notices of this appeal were accordingly served on the and 'provides that the period commences to run from the date of the decree under appeal. a certified copy on 6-1-1975, and In the present case the appellant had applied for of the judgment as well as the decree in the trial Court he was not given a copy of the decree ; what he was given was a copy of judgment, The document, he filed alongwith memo, of appeal. B Unfortunately, when the appeal was presented in the District Court, even the office of the Distirct Judge was not careful in examining the appeal as it should have been and the appeal passed through the stage of admission under Order 41 Rule 14 Civil Procedure Code without tne defect in the appeal being brought to the notice of the learned District Judge who admitted it. Thus it is quite clear on the record that the appellant had applied for a certified copy of the judgment and decree and when he was given only a certified copy of the judgment he filed the same alongwith the memo of appeal in the bonafidt belief that the said documents would meet the requirements of Order 41 Rule 1 C.P.C. It is true that before the appeal came on for actual hearing before the Additional District Judge the respondents raised a preliminary objection that the appeal is time barred. The position, therefore, is that when the certified copy of the decree was filed by the appellant in the District on 20-2-1975, the whole of the period between the date of application for the certified copy and the date when the decree was actually signed would have to be excluded under section 12 (2). Inevitably the presentation of appeal on 20 2-1975 would be in time. Faced with this position Mr. Sulaiman Qasim attempted to urge that the application made by the appellant on 6-1-1975 was not really an applica tion for a certified copy of the judgment and decree, he contended that it was an application for the certified copy of the judgment. This argument is wholly untenable. The words used in the application clearly sbow that it was an application for a certified copy of the judgment as well as for the decree. The failure of the trial court to supply certified copy of the decree on 29-1-1975 as well as the failure of the office of the District Court to examine the defect in the presentation of the appeal at the initial stage have contributed substantially to the present, unfortunate position. In such a case there can be no doubt that the litigant deserves to be protected against the default committed or oegligence shown by the court or its officers in the discharge of their duties. As observed by Cairns, L. C. in Rodger v. Comtoir Escompte de paris (187) 3 PC 465 "ons of the first and highest duties of all Courts is to take care, that the act of the Court does not injury to any of the litigants." In the case of Ismail Brothers v. S. M.Faztdl & Co. (PLD 1958 Karachi 159) Inamullah J. (as he then was) held that no party should suffer by act of Court". As indicated earlier the appellant had applied for obtaining certified copy of the judgment and the decree on 6-1-1975 and the officer had supplied the certified copy of the judgment on 29-1-1975. It is admitted that the appellant had applied for certified copy of the decree on 8-2-1975 and the same was supplied to him on 13-2-1975. This is also not in dispute that the decree was drawn in pursuance of the judgment of the Civil Judge dated 4-1-1975 on the sami day and it was also signed on the satnj day. It is bjras out from ths decree sheet dated 4-1-1975 of the Court. The case then set up by him was that although he had not filed tfre copy of the decree alongwith the appeal but no objection was raised by the office and that after he had filed the appeal he realise'd that the copy of the decree should have been filed alorgwith the appeal and as sutb he applied for the copy of the decree but by ihe time about two months have passed. Section 5 of the Limitation Act gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power nd discretion ought to be exercised upon principles which are well understood ; the words "sufficient cause" receiving liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputed to the appellant. The appellant had applied for certified copy of the judgment and decree oa 6-1-1975 That failure of he copying department to supply the copy of the decree inspite of that application on 19-1-1975 contributed largely to the delay in filing it. The appellant cannot be held responsible for the laches of the copying department. The appellant filed another application for obtaining the certified copy of the decree ! am inclined to accept the statement that he was under the bonofide impression that the decree was not prepared till 29-1-1975 and that is why it was not supplied to him by the cipying department. This being the evidence on record, it is clear to me that the decree was not ready on 6-1-1975 and also on 29-1-1975 when the certified copy of the judgment was delivered to him. It is presumable that the appellant bad pursued his case with vigilance and the decree was not drawn till 29-1-1975- In this view the case of the appellant would be covered by the ratio of Hon, ble Supreme Court's judgment in the case of Syed Faiz AH Shah v Chief Administrator of Auqaf, Lahore (1974 SCMR 33) from which the following dictum may be produced with advantage-: 'We cannot also ignore the. fact that the appellant might well have been misled into thinking that the copy would not be available during ihe vacation of the High Court, particularly, since ibe copying section had not given him any date for the delivery of the copy". It is not a case where it is possible or such inaction or negligence as would deprive him of the protection of section 5 of the Limitation Act. I am therefore inclined to allow his application under section 5 and to condons the delay In filing the appeal wish a certified copy of the decree. This appeal is, therefore, allowed, Ihe impugned judgment of the learned Additional District Judge is set aside aud it is directed that the case would go. back to him for the hearing of the appellant's on appeal on merits. Under the cimcumstances, however, the parties would bear their own costs. (TQM) Appeal allowed.
PJJ 1985 Karachi 321 (DB) PJJ 1985 Karachi 321 (DB) Present: ajmal mian & tanzilur rahman, JJ Mean. UNIVERSAL BRUSHES LIMITED, Karachi-Petitioner versus SUPERINTENDENT, CENTRAL EXCISES & LAND CUSTOMS, Karachi and 2 OthersRespondents Const. Petition No. D-62 of 1982, decided on 31-10-1984. (i) Sales Tax Act, 1951 (HI of 1951)
Ss. 3 & 7 Sales taxLevy of Exemption from Notification <No. S.R.O. 666(1)/81 dated 25-6-1981) relied upon by petitioner not exempting brushes from payment of tax Held : Impugned notice to pay sales on brushes manufactured by petitioners to be legal to extent of making demand with effect from 25-6 1981. [P. 324JC (ii) Interpretation of Statutes Statutes and documentsAmbiguity inHeld : In case of ambiguity (in particular clause of statute or document), reference to be (competently) made to other relevant portion of statute or document. fP. 323]-4 (Hi) Maxims
Expressum facit cessare taciturn (when there is express mention of certain things then any thing not mentioned is excluded)Applica bility of. fP. 324]fl Mr, Nasim Ahmad Khan, Advocate for Petitioner. Syetj fnayqt AH, Advocate for Respondent, Date of bearing : 31-10-1984. judgment A. "That the order dated 27-12-81 of the Respondent No. 1 is with out lawful authority for the reasons that the goods manufactured by the petitioner are not liable to levy of sales-tax, on account of clause 61 of the Sales-tax Act exempting Notification No. SRO-666, dated 25-6-1981 and that the oral orders of the Respondent No. 2 and the Respondent No. 3 on the representation of the petitioner dated 2-12-81, 6-12-81 and 8-12-81 are without jurisdiction and illegal and liable to be set aside. B. That the interpretation placed by the Central Excise Authorities on the impact of chapter 82 of section XXI of the First Schedule to the Pakistan Customs Tariff, is incorrect and against the admitted principles of the interpretations of the statute and more so of the interpretation of fiscal statutes. C. That the demand ordered to be created by the Respondent No. 2 on 13-12-J98J orally with effect from 25-6-1981 is illegal. D. Cos;. E. Any other remedy that this Honourable Court may deem fit and proper to grant." 2. The relevant facts leading to the filing of the above petition are that the petitioner is a private limited company and is carrying on business of manufacture and sale of brushes, it seems that upon the enforcement of the Sales Tax Act 1951 brushes were treated as an exempted item being hand tools. In this regard, reference may be made to Circular No. 9 i?8j-ST/70 dated 18th November, 1970 addressed to the Commissioner of Income Tax, Lahore Zone, Lahore, by the Second Secretary, the Central Board of Revenue, stating therein that "Brushes" were covered by the expression "Hand Tools" and hence locally manufactured brushes were exempt from the pay ment of sales tax under item No. 1 of Sales Notification No, 'y dated 27-6-1951, letter No. 9 (78)-ST/69, dated 12-4-76 addressed to M/S Pakistan Brush Manufacturers Association by the Second Secretary, the Central Board of Revenue informing them that the Board had clarified to the Sales Tax Authorities that brushes which were used in the manufacture or pro duction of goods were exempt from Sales Tax, Circular No C. No. 9 (78)- ST/69 dated I3th April, 197b addressed to all the Commissioners of Sales Tax and to all the Collectors Central Excise and Land Customs by the Second Secretary, the Central Board of Revenue, informing them that under Item No. I of Notification No. 9 dated 27-6-195! "Hand tools and Machine Tools" was amended vide SRO 739 (1) 75 dated i-7-75 as follows :"Machine Tools and hand tools for rse in the manufacture or pro duction of the goods". It was also stated that since brushes wers hand tools, such brushes. a useh were for use In the manufacture or production of goods would be exempt from sale tax and a letter dated 10th June, 1976 addressed to M/S Pakistan Brushes Manufactures Association by the Second Secretary, the Central Board of Revenue reiterating the aforesaid stand (annexures marked A, B, C and D annexed to the -»;ir ' 3.1} ^66(l)/8l, was Sales Tax Act 1951 « s .' if sales tax. It enu. No. 61, which However, it seems that on 25th jut.e H8< a issued under subsections (i) & (2) of S« i 7 exempting, the items mentioned therein, f o-& , j ill suffice to reproduce the relevant eatry, ..iei reads as follows : "Cutlery falling under headiag 82,09 and 82.13, 82.14, 82.15; machine tools and hand tools for use in the manufacture or production of goods falling under Chapter 82, 84.45, metal utensils falling under heading 82.13 ; safety razor blades falling under heading 82.11," it may be noticed that there is no express reference to brushes in the above quoted entry, but reference has been made inter alia to Machine tools and Hand tools for use in the manufacture or production of goods falling la Chapter 82, 84.45 etc. Upon ths issuance of the above SRO, it seems that the Central Excise Department, which was entrusted with the work of collection of sales tax in 1981 issued a notice dated 27-12-1981 to the petitioner, directing them to pay sales tax at the rta<Urd, rate of 1 2$% on brushes manufactured and 85% ad val. 50% ad val. 50% ad val. 50% ad val. "Hand tools, including glaziers' diamonds, not falling with any other heading of this Chapter , blow lamps, anvils ; vices and clamps, other than accessories for, and parts of machine tools ; portable forges, grinding wheels with frameworks (hand or pedal operated) : A Grinding wheels with frameworks. B. Grease guns. C. Shoe lasts of base metal. D. Other, It may be noticed that the above quoted entry does not expressly refer to brushes, but it has been urged by the learned counsel for the petitioner that by implication brushes are included in the above quoted entry as they are admittedly Hand tools, and, therefore, they are exempt from the payment of sales tax. It may be observed that it is a well settled principlei of interpretation of statutes and documents that in case of ambiguity refe-L rence can bs made to the other relevant portion of statute or document.! We have examined the Pakistan Customs Tariff and have noticed that) entry No. 96.01 has direct bearing to the point in issue, which reads as follows : 96.01 "Brooms and brushes, consisting of twigs or other vegetable materials merely bound together and not mounted in head (for example, besoms and whisks), with or without handles ; other brooms and brushes (including brushes of a kind used as parts of machines) ; prepared knots and tufts for broom or brush making ; gaint rullers ; squeegees (other than roller squeegees) and mops. A. Tooth brushes. 150% ad val 10% 899.72 B. Shaving brushes. 85% ad val 10% 899.72 C. Paintbrushes. 85% ad val 10% 899.72 D. Wire brushes. 85% ad val 10% 89^.72 E. Mops. 85% ad val 10% 899.72 F. Feather dusters. 150% ad val 10% 899.72" G. Other, A persual of the above quoted entry indicates that the same covers brushes. We are inclined to hold that since above quoted entry 96.01 deals with brushes, the same cannot be read into aforesaid entry No. 82.04 by implication. If the Federal Government wanted to exempt brushes from payment of sales tax in the aforesaid SRO dated 25-6-1981 reference would have been made to entry No. 96 01 in addition to entry 82. The Latin [proverb, "Fxpressum facit-cessare-tacitum" (when there is express men- BJtion of certain things, then any thing not mentioned is excluded) on all jt'ours applicable to the instant case. However, it was contended by Mr. Nasim Ahmad Khan, learned counsel for the petitioner that since reference has been made only to entry No. 82 in the aforesaid SRO, it is not per missible to make a reference to entry No. 96 01. In our view, the above contention is untenable for the foregoing reasons. We are, inclined to hold that the above SRO dated 25th June, 1981 does not exempt brushes from the payment of sales tax and, therefore, the impugned notice to the extent of making demand with effect from 25th June, 1981 is legal. It may be pertinent to observe that in the impugned notice it seems that by mistake 25th April, 1981 has been mentioned instead of 25th June, 1981. 4. It was then contended by Mr. Nasim Ahmad Khan that the peti tioner cannot recover the sales tax from their purchasers to whom they had sold brushes without charging salestax on the aforesaid representations made by the Central Board of Revenue during the period prior to the service of the impugned notice, and, therefore, they would suffer the above loss, inspite of no fault on their part It will suffice to observe that the Central Board of Revenue would consider the above aspect sympathetically if it would be approached by the petitioner. With the above observation the petition is dismissed with no order as to costs. (TQM) Petition dismissed.
PLJ 1985 Karachi 324 PLJ 1985 Karachi 324 Present : naimuddjn, ACJ In re : SUCCESSION CERTIFICATE IN RESPECT OF ASSETS AND LIABILITIES OF MUHAMMAD HANIF QURESHI DECEASED SMA No. 123 of 1985, decided on 15-7-1985. Succession Act, 1925 (XXXIX of 1925)
Ss 372 & 373 Succession certificate Grant of Letters of Administration in respect of certain debts already obtained .from High Court of Justice, London - No objections, however, filed to subsequent application submitted before High Court (Sind) for grant of succession certificate for remaining debts and securities of deceased Held: Court having ample authority to grant more than one certificate, same to be granted subject to compliance of relevant rules. [P. 327]A PLD 1968 Dacca 952 ; PLD 1950 Lah. 253 ; AIR 1929 Bom. 45 ; 1? CWN 836 & 16 CWN 231 ref. Mr Abdul Wahid Abid, Advocate for Applicant, Date of hearing : 11-7-1985. order This application for grant of Succession Certificate of the debts and securities of late Muhammad Hanif Qureshi alias Sadary s/o Rahim Bux is filed by Muhammad Saleem son of the deceased. 2. According to the averments made in the petition the deceased has left Mst. Jeha'n Ara wife of Hamid Khan and Mst. Shahnaz Begum wife of Ramzan Ali both daughters and the esidents of Agra (India) from the first wife namely, Mst Shahinshai Begum and one daughter and two sons namely, Mst. Uzma Naz wife of Muhammad Tariq, Muhammad Saleem and uhammad Naeem, all residents of Karachi as his next-of-kins from Mst. Razia Begum the second wife. 3. The Succession Certificate is sought in respect of the debts and securities mentioned in the Schedule 'H' to the petition. 4 The deceased died at London but was buried in Karachi as per extract from Paposh Nagar Grave Yard, Karachi. 5. Notice of the main application was served on the attorney of the next-of-kins Nos. 1 and 2 and on next-of-kins Nos. 3 and 5. Notice was also published in the following newspapers : Daily Khaleej Times dated 16-5-1985 of U. A. E. and Daily Morning News dated 17-5-1985. Notice of the main application was also affixed on the Court Notice Board as per office note based on bailiff's report. 6. Muhammad Rais Sadri attorney of Mst. Jehan Ara and Mst. Shahnaz Begum has filed an affidavit stating that he has no objection to the grant of Succession Certificate. Mst. Uzma Naz wife of Muhammad Tariq and Muhammad Naeem son of late Muhammad Hanif also filed the separate affidavits stating that they have no objection to the grant of Succession Certificate. Besides, Muhammad Sarwar Khan and Muhammad Khalid Ameen, two residents of the locality and in the neighbourhood have also filed their affidavits interalia, stating that they knew the deceased and he had left the petitioner and the four sons and daughters named in the application as his surviving legal heirs and that he left no other legal heir. 7. 1 may mention that Muhammad Azim Khan Sadari s/o late Muhammad Saleem Khan, resident of 92-B, Sindhi Muslim Housing Society, Karachi has filed his affidavit herein he has stated that he is the real paternal cousin of the petitioner and that he is one of the administra tors appointed by the High Court of Justice, London. From the averments made in the application it appears that the deceased had left approximately a sum of £1,44,248-04 in the Bank of Credit and Commerce International, Earls Court Road Branch, London. The etters f Administration were obtained from the High Court of Justice, London in respect of this amount. A photo stat copy of the Letters of Administration is annexed to the petition. In it the names of the ext-of-kins are mentioned and those are the same as mentioned in the application under consideration. 9. However, the question that arises for consideration is whether more than one Succession Certificate can be granted as the petitioner has already obtained in respect of certain debts mentioned herein before from ths High Court of Justice, London, It is submitted by Mr. Abid that mare, than one Succession Certificate can be granted and in support of the submission he relies on sub-section (3) of Section 372 of the Succession Act, 1925, which reads as follows : "372. Application for Certificate (1)
(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof." The provisions of this sub-section came up for considration in Mrs. Sufia Khanam and otbers v. Abdu! Huq Khan and others (P. L. D. 1968 Dacca 952), on which reliance has been placed by Mr. Abdul Wahid Abid, wherein a Division Bench of the Dacca High Court in support of the proposition that more than one Succession Certificate may be granted observed at page 956 of the report as follows : "To lay down a limitation in the granting of a certificate where there is none in the statute might involve denial of justice in some cases. Courts should have unfettered discretion to do complete justice in a matter unless the law imposes a limitation In this case no limitation regarding number of certificates can be imposed as, we are of opinion that no such prohibition is laid down by law. A Court has to decide after all relevant considerations as to whether or not it would be in the interest of justice to grant more than one certificate in a case where there is more than one applicant for the same. The Legis lature appears to have left the matter to the discretion of the Judge who is empowered to issue more than one certificate by reason of sub-section (3) of section 372." In support of the above observation reliance has been placed by the learned Judges of Dacca High Court on a Division Bench judgment of the Lahore High Court in Malik Fateh Muhammad and others v Malkani Bhag Bbari (P. L D. 1950 Lah. 253) and on a Bombay High Court judgement in Abdul Gafur Mabmad Sabeb Maniyar v. Jayarabi Ibrahim and others (A. I. R. 1929 Bom. 456). Reference may also be made to a Division Bench judgment of the Calcutta High Court, which consisted of Woodroffe and Carnduff, JJ., in Smt. Annapurna Dassy v. Nalini Mohan Dass and another (18 CWN 836). wherein Woodroffe. J. while delivering the opinion of the Court, observed as follows : "I do not see any principle why a person may not, as in this case, apply for a certificate to enable him to recover a portion of a debt due to the deceased."This observation implies that more than one certificates can be granted. It may however, be worth noting that a Full Bench of Allahabad High Court in Ghafur Khan v. Kalandari Begum (ILR 33 All 327) took the view that there can be only one certificate in respect of the properties of the deceased. Subsequently, however, Division Bench of Allahbad High Court In SbarifoD Nissa Bibi v. Masnm AH and another (ILR 42 All 347) though fcjt bound by a Full Bench decision but appreciated difficulties that might arise by reasons of the limitations expressed by the Full Bench. Nonetheless, these decisions of Allahabad High Court were not followed by a Division Bench of Dacca High Court in Sufia Khanam and others v. Abdul Huq and others (supra) and I have already quoted the relevant obser vations and the Full Bench decision of Allahbad High Court was expressly dissented from by a Division Bench of the Calcutta High Court in Muhammad Abtui Hnssain v, Sarifan (16 C W N 231). Since no objections have been filed to the application inspite of thel publication f the notice and in view of the ample authority to grant morel than one certificate I see no mpedement in granting the Succession Certifi-j cate. accordingly grant the same subject however, to compliance of the rules as to security and otherwise. Certificate granted.
PLJ 1985 Karachi 327 PLJ 1985 Karachi 327 Present : naimuddin, J MUSLIM COMMERCIAL BANK LIMITED, l.l. Chundrigar Road, Karachi and AnotherPetitioners versus ZAMIR AHMEDRespondent Civil Revision No. 349 of 1971, decided on 22-5-1985. (!) Provincial Small Cause Courts Act, 1887 (IX of 1887) Ss. IS & 25 and Second Schedule clause 35 (/) read with CivilProcedure Code, 1 08 (V of 1908) O VIII R. 6 Small Cause Court Jurisdiction ofCounter claimCogrizance ofApplicant Bank claiming damages for injury allegedly caused to it by respondent- Held: Suit for inj uiy expressly having been excepted under clause 35 (/) of Provincial Small Cause Courts Act, applicant's counter claims not to be entertainable by Small Cause Court. [P. 331]£> (ii) Provincial Small Cause Courts Act, 1887 (IX of 1887) -Second Schedule, clause 35 (/)"Injury" Meaning ofHeld : Word "jnjury" used in sub-clause (1) to be understood in broader .1.' , jd not to be restricted only to physical or bodily injury to psclaiming compensation. [P. 331]fl&C AIR 1968 Bom. 267 ; AIR 1951 Runj. 102 & (1968) 66 WWR 289 ref, (Hi) Words aud Phrases -"Injury"Meaning of: [P. 330]^ et. seq. Oxford English Dictionary & Law Terms & Phrases Judicially Interpreted re/. Mr. G. H. Malik, Advocate for Petitioners. Respondent called absent. Dftte of bearing : 22-5-1985. judgment This judgment will dispose of Misc. Appeals Nos. 16/79 and 17/79. In both appeals, the appellant is Glaxo Laboratories Ltd. and respondent is the Registrar of Trade Marks. M. A. No. 16/76 challenges the decision dated 16-9-1978 of the respon dent, Registrar of Trade Marks Karachi, refusing to register the trade mark "VITAMILK" in class 5. for which the appellant had filed Applica tion No. 66055 dated 21-8-1977. The respondent issued a notice to the appellant to show cause why the said Application No 66055 should not be refused registration inter alia on the ground that trade mark "VITAMILK" was descriptive under Section 6 (1) (d) of the Trade Marks Act, 1940. The appellant replied to the show-cause notice and also filed various documents in support of the appellant's contention that the trade mark "VlTAMfLK" was not descriptive under Section 6 (I) (d) of the Trade Marks Act. Howewer, by the impugned decision dated 19-9-i978, the respondent rejected the application of the appellant. The operative part of the order dated 16-9-1978 of the Registrar of Trade Marks refusing appellant's Application No. 66055 for registration of the Trade Mark "VITAMILK" in class 5 reads as follows :~- "The applicants have failed to establish their case to cross the objection raised under section 6 (1) (d) of the Trade Marks Act, and as the mark is dis-qualified itself at this stage, I do no: think it appropriate to proceed further to discuss in detail the objections raised under Sections 10 (1) and 8 (a) of the Act. The upshot of the whole discussion is that the mark does not qualify for registration and hence it is refused registration in exercise of the discretionary power vested in me under the provisions of the Trade Marks Act 1940." Misc. Appeal No. 17 of 1979 challenges the decision dated 9-11-1978 of the Registrar of Tnde Marks refusing the appellant's Application No. 66471 dated 3-12- 177 for the registration of the trade mark "VITAMILK" in class 29. In this cass a similar show-cause notice was issued by the Registrar of Trade Marks which was replied by the appellant and by the impugned decision dated 9-II-1978 the Registrar of Trade Marks rejected application No. 66471 of the appellant for registration of this mark in class 29. Being aggrieved by the two decisions dated 16-9-1978 aad 9-11-1978 of the Registrar of Trade Marks refusing the appellant's applications for legislation of the trade mark ' VITA MILK.' in classes 5 and 29, these two appeals have been filed. ! have beard Mr, A. A. Zari, learned counsel for the appellant. No one has appeared on behalf of the respondent, the Registrar of Trade Marks. 2. Section 6 of the Trade Marks Act 1940 is reproduced here : "6,-~(l) A trade mark shall not be registered unless it contains or consists of at least one of the following essential particulars, namely ; the name of a company, individual, or firm, represented in a special or particular manner ; (a) the signature of the applicant for registration or some pre decessor in his business ; (b) one or more invented words ; (a) one or more words having no direct reference to the character or quality of the goods, and not being according to its ordinary ignification, a geographical name or surname of the name of a sect, caste or tribe in (Pakistan) ; (e) any other distinctive mark, provided that a name, signature, or any word, other than such as fall within the descriptions in the above clauses, shall not be registerable except upon evidence of its distinct iveness, (2) For the purposes of this section, the expression "distinctive" means adapted, in relation to the goods in respect of which a trade mark is proposed to be registered, to distinguish goods with which the proprietor of the trade mark is or may be connected in tho course of rade from goods in the case of which no such connec tion subsists, either generally or, where the trade mark is proposed to be registered ubject to limitations, in relation to use within the extent of the registration. (3) In determining whether a trade mark is adapted to distinguish as aforesaid, the tribunal may have regard to the extent to which {a) the trade marks is inherently so adapted to distinguish, and (b) by reason of the use of the trade mark or of any other circum stances, the trade mark is in fact so adapted to distinguish." 3. The reasoning of the Registrar or Trade Marks in upholding the objection raised by the Trade Mark Registry under Section 6 (I) (d) of the Trade Marks Act 1940 is as follows (given in the order dated 16-9-1978) ; "The mark applied for here is the word "VITAMILK" ; Now the prefix "Vita" is a reference to "vitamins" or '-vitality" the suffix "milk" of the trade marl? is totally descriptive of the guods in uestion. Addition of vitamins etc. to the milk actually and clearly indicate the character and quality of the goods. A milk which comprises of or contains vitamins or such other essential ingredients which make the milk full of vitality and energy indicate its character and quality.During the course of his arguments, the learned advocate for the applicants referred to certain cases. Most of the cases referred to by him are those where the prefix had been "Vita" but the suffixes bad always been a word having no direct reference to the character or quality of the goods. But here in this case, the total combination of the mark applied for is a fully descriptive word for the goods in question." 4. Mr. A. A Zari, learned counsel for the appellant submitted that the mark "VITAMILK." is a word coined by the appellant and it has no obvious meaning as wrongly observed by the Registrar of Trade Marks. It was argued that the mark was to be taken as one word and to be dissected as has been wrongly done by the Registrar of Trade Marks. Learned counsel also referred to the dictionary meaning of the word "Vita". In Dorlaod's Illustrated Medical Dictionary, 23rd Edn. At page 1532, the meaning of "Via" is given as "life". Learned Counsel for the appellant also re.erred to page 2558 of Webster's Third New Interna tional Dictionary where also the meaning of Vita" is given as "life". L- rned counsel then pointed out that appellant's trade mark "OSTERMILK" with the suffix "milk" has been registered in ifferent classes by the Registrar of Trade Marks and as such the registration of the mark "V1TAMIK" on the ground that tne suffix "milk" is descriptive s not warranted by law. Mr A. A. Zari also informed that in England appellant's mark "VITAMILK" has been registered. 5. In my view, in the facts and circumstances of the present cases, the Registrar of Trade Marks should have looked at the mark VITAMILK" it to see whether any of its hen, in aay case, the word products whose trade names fhe ?how-eause notice issued as a whole and should not have dissected component's part conveys any meaning. "Vita" does not always jidicate that the include the word "Vita" contains vitamins. by the Trade Marks Registry itself refers to sibo'it 17 trade marks already registered by the Registrar of Tradj Marks having the prefix "Vita". Then appellant's mark "OSTERMILK" has also he^n tsgirteie i by the Registrar of Trade Marks, suffix of which mark is "milk". In tha circumstances, just because the word "Vita" has heen used in the mark or the mark con tains the suffix "milk", the Resgistrar of Trade Marks could not make it a ground for refusing to proceed with the registration of the mark under Section o (1) (d) of the Trads Marks Act 1940. The trads mark "VITAMILK." appears to be a newly coined word and although this mark may have some suggestive references 10 the character or quality of the goods of the appellant, it has no such direct reference as may make the trade mark descriptive of the goods. ib my view, therefore, ihe reasoning of the Registrar of Trade Marks in upholding the objection Bj>f the Trade Marks Registry under Section (6) (I) (d) of the Trade Marks Act 1940 is not proper. Tha trade mark "VITAMILK" being a newly coined word and not being descriptive of th<; goods in question, the applications of the appellant should sot bays been rejected under Section 6 (1) (d) of tbe Trade Marks Act 1940. 6. As a result Misc. Appeals No. 1-6 of 1979 and 17 of 1979 are allowed and the decisions dated 16-9-1978 and 9-11-1978 of toe Registrar of Trade Marks refusing Application No. 66055 in class 5 and Application No. 66471 in class 29 are set aside. The Registrar of Trade Marks is directed to take further action on the said applications in accordance with law. There will be no order as to costs. (TQM) Appeals allowed.
PLJ 1985 Karachi 335 PLJ 1985 Karachi 335 Present : saleem akhtar, J Mst. NASERA BEGUMPetitioner versus Vlth ADDITIONAL DISTRICT JUDGE, Karachi and 2 OthersRespondents Const. Petition No. S. 34 of 1985, decided on 30-5-1985. (i) Ckrartfaas & Wards Act, 1890 (VIII of 1890)
S. 12Interim custody-Order ofVariation inCourt- Jurisdic tion ofPetitioner not complying with orders of court and removing minors rom jurisdiction of courtCustody of minors even transfer red to her brother-in-law on marriage of petitioner to stranger Held : Circumstances nder which interim custody given to peti tioner having radically changed, trial court to competently vary, alter or rescind its previous interim rder Held farther : Fresh interim order passed in such circumstances not to be illegal or with out jurisdiction. [P. 339 Jh (ii) Guardians & Wards Act, 1890 (VIII of 1890) \ S. 12-MinorInterim custody ofOrder ofChange inOrder for interim custody passed in given set of facts and circumstances in welfare of minorsSubsequently variation or alteration made in such facts by act of omission or commission by any of parties or otherwiseHeld : Court to be competent to take note of such subse quent events and to (competently) vary, alter or rescind interim order in welfare of minors. [P. 338JF (Hi) Guardians & Wards Act, 1890 (VIII of 1890)- S. 12Interlocutary orderVariation in Powers of court Exercise ofHeld : Court having power to pass interim order to competently exercise jurisdiction (m changed circumstances) to vary or alter sameOrder for interim custody of minor passedHtld : Court not to be powerless to pass any order to vary such order in welfare of minor. [P. 338]G (iv) Guardians & Wards Act, 1890 (VIII of 1890)-
S. 12MinorTemporary custody of Order of Prima facie case forHeld : Court having been empowered to pass interlocutory order in respect of temporary custody of minor, prima facie case to be required to be) made out by applicant regarding situation being urgent as to call for interim order for welfare of minor. [Pp. 337 & 338)C (?) Go»rdi» s & Wards Act, 1890 (VIII of 1890)-
Ss. S2, 17 & 25 GuardianshipMatters relating to Court Exercise of powers byHeld ; Overriding consideration in matters relating to guardianship being always welfare of minor, court in such cases to exercise parental jurisdiction Case for urgent interim order for protection and welfare of minor made out Held : Court to exercise its power \mder S. 12 to pass necessary order. [P, 33B]D &E (vi) Guardians & Wards Act, 1890 (VIII of 1890)
-Ss, 10 & 25 MinorTemporary custody ofOrder of Held : Order for temporary custody (of minor) to be competently passed during pendency of proceedings under Section 10 c? 25 of Act [P. 337]S PLD 1973 Lah. 442 ; PLJ 1975 Lab, 197 & PLI 1975 Qta. 212 ref. (rii) Writ Jurisdiction Exercise ofHeld : Order noi challenged not to be attacked id writ jurisdiction of High Court. [P, 337J4 (viii) Writ Jurisdictioa-
Exercise ofFailure to challenge basic order-fciiect otPetitioner . neither challenging nor seeking any relief against basic order Subse~ quent orders based on such order, however, challengedHeld : Plea regarding such order being without jurisdiction not to be entertained. [P. 339J/ Mr. A, Q. Malik, Advocate for Petitloser, Mr. Ghulam Ghouse & Mr. Rizvi, Advocates for Respondents. Date of hearing : 30-5-! 985. judgment The petitioner was married to tt?e respondent Ma. 3 ou 23-7-1973 and « ut of the wedlock Muhammad Ali was boro in June, 1975 and Aisba alias Rani was born in April, 1976. laea^ftar differences arose between the parties and marriage was dissolved through a court and the minors remained in the custody of she petitioner. There seems to be spate of litigations between the parties including the suit lor maintenance by the petitioner and Family (G&W) Suit No, 2164/80 filed by respondent No. 3 under section 25 of the- Guardians and Wards Act for the custody of the two minors. During the pendesey of this suit the respondent No- 3 filed an application under section 12 of the Guardians and Wards Act for temporary custody of the minors. The learned Family Court by its order dated 16-3-198! did not accept the application as at that time Muhammad Ali was about 5| years old and Rani was aged 4£ years. The Court held that as they are of tender age and have remained with the mother (petitioner) it is in the welfare of the minors that they shall continue in her custody, but she was restrained from removing the minors from the jurisdiction of the Court and to bring the minors, in Court on the date of hear/ng to meet the respondent No. 3. On 20-8-8( the respondent No. 3 filed application under S. 25 read with Sections 26 44, & 45 of the said Act alleging that as the petitioner has not brought the minors to Court and removed them from the jurisdciiion of the Court, the custody may be restored to him. Agaia on 20-12-1982 application under S. 45 was filed by the Respondent No 3 for issuing direction to the petitioner to produce the minors. These applications remained pending. Yet another application under S. 12 was filed by the respondent No. 3 on 1-11-1983 for the interim custody of the minors. By an oder dated 3-3-1984 the learned trial Court ordered that the interim custody of the minors be delivered to the petitioner. The appeal filed by the petitioner was dismissed by the learned District Judge. As the order dated 3-3-1984 was not complied with, the custody of the minors was not delivered to the respondent No. 3, the respondent No. 3 made application under S. 45 of the Guardian & Wards Act. The learned trial Court by order dated 15-7-1984 directed the petitioner to produce the minor in Court on the next date of hearing failing which warrant of arrest was to be issued against the petitioner for detention in Civil prison. The petitioner filed an application which was dismissed by the trial Court on 30-7-1984 and warrant of arrest was issued against her. This order was modified on 6-8-1984 and warrant of arrest was issued against the petitioner and was ordered fa be produced in court on the date of hearing. The petitioner Sled appeal against the orders dated 15-7-1984 and 30-7-84 which was dismissed on 27-2-1985. The petitioner has filed this petition against the orders dated 15-7-1984, 30-7-84, and 24-2-85. At the outset it may be pointed out that there is no order dated 24-2-1985. It should be order dated 27-2-1985. The orders dated 15-7-1984 and 30-7-1984 were passed by the learned trial Court issuing warrant of arrest against the petitioner as she had failed to comply with order dated 3-3-1984. Toe order dated 27-2-1985 is the appellate order confirming these orders, The main ground of the learned counsel for the petitioner is that after passing the order under section 12 of the Guardian & Wards Act in proceedings under section 25, the Court could not have passed any other order under section 12 varying substantially the first order during the pen dency of the main application under section 25. The learned counsel also contended that such an order amounted to a review of the previous order, and as the Family Court is not competent to review its own order the iterim order and subsequent orders passed by the respondent No. 1 & 2 are void! ab initio and without lawful authority. It is pertinent to note that thejA petitioner has not challenged She order dated 10-3-1984 therefore the samej can not be attacked. Before considering the coatentioo of the learned counsel it is necessary to ascertain the nature of proceedings under section 12 of the Guardian and Wards Act. Section 12 empowers the Court to pass an order for temporary custody and protection of person or property of the minors as it deem fit and proper. Such application can be made in a pending proceeding under section 25 of the Act, It therefore, authorises the Court to pass interlocutory order for temporary custody of the minor, subject to the final decision in the main case. Ft is now well settled that an order for temporary custody can be passed during the pendency of proceedings! under section 10 or section 2 - of the Act. Reference can be made tojB Niamatallaii Qureshi and another v. Bilquis Sitara P. L. D. 1973 Lah. 442.j Sabbir Raza v. Mst Sartaj Fatima and 2 others P. L. J. 1975 Lah. 197, £. C. Rani and 2 others v. Arthur Dennis and others P. L. J. 1975 Quetta 212 and a large number of other cases, which have been cited in these authorities. As section 12 to empowers the Court to pass aa interlocutory order inj c respect of temporary custody of the minor, it is necessary that the applicant! 1 should make out a prima facie case that the situation is so urgent that it calls for an interim order for foe welfare of the minor. The over-riding consideration in matters relating to guardianship is always the welfare of the minor. In such cases the Court exercises a parental jurisdiction as it were loco parent's the minors. A reference can be made to Khizar Hayat jTiwana v. Zainab Begum P L D. 1967 S C. 402 In such circumstances, land in exercise of such jurisdiction whsn a case is made out for urgent (interim order for protection and welfare of the minor the Court can exercise its power under section 12 to pass necessary orders. In Mohammad Sadiq Butt v. Khalida Parveen P L. D. 1967 Kar. 645 while dealing with the contention that the language of sub-section (1) of section 12 does not lay down any condition for the making of an interim order it was observed as follows : "But like that there are no specific conditions laid down for the appointment of a Receiver under Order 41 Rule I C. P.C.-and yet before the introlocutory order under that provision is passed the Court has to go into question whether the passing of the interim order pending decision of the matter is in the interest of justice, and if not passed there was danger to property or likelihood of waste etc. The fact that no particular conditions are laid down in sub-section (1) of section 12 does not dispense with the funda mental requirement of passing interim order. I have not the slightest doubt that when such an order is sought the party seek ing the order has to show^ar certain element of urgency". The question now arises whether an order passed under section 12 can be varied, altered or set aside by the Court. The nature of the order passed under section 12 has already been determined It is interim and interlocutory. It is not a final order and is subject to the decision of the main case. The order for interim custody is passed on a given set of facts and circumstances in the welfare of the minors. If subsequently those facts which had impressed the Court to pass such an order are varied or altered by an act of omission or commission by any of the oarties or otherwise, the Court will be competent to take note of all such subsequent events and if it comes to the conclusion that due to change of circumstances, the situation has completely varied and if it is in ttie welfare of the minor, interim order passed earlier can be varied, altered or escinded. The interim orders are always subject to chage on such grounds. A court which has the power to pass an interim order can sxercise jurisdiction in changed circumstances, to vary or alter the same. The order under section 12 has been described as interim order and no finality is attached to it. It will be a mis-conception to say that once an nterim order for interim custody has been passed, if the circumstances :ha,. '. and adversely eff:ct tha interest of minor, the Court is powerless ind cannot pass any order to vary it in the welfare of the minors. The learned counsel for the petitioner has referred to Manzoor Ahmad Khan v. S. Maqsood Ali PLJ 1976 Lab. 856 and contended that the second order passed by the trial Court was hit by the principle of res juaicata. In the authority relied upon by the learned counsel the finding of the Con troller with respect to the rate of rent was confirmed by the appellate Court, but his successor made contrary observation. In those circum stances the finding could not have been reversed, This authority is not applicable, as no finding has been given by any Court after hearing the entire case on merits. The matter has yet to be considered and decided on the basis of evidence of the parties which will now be recorded. H In the present case the respondent No. 3 had filed application for recalling the earlier order and or its variation on the facts that subsequent to the passing of the order for interim custody, the petitioner has married a stranger and is residing at Multan. This fact has not been denied. The paramount consideration before the Court grantingcustody to the peti tioner was that she would keep the children in her own custody and care at Karachi and bripg them to Court on every date of hearing to enable them to meet the respondent No 3. Admittedly she has left Karachi and is resid ing in Multan. It is stated by the learned counsel for the petitioner that she has left the children in the custody of her brother-in-law i.e. husband of her sister, Abdul Qayoom. It seems that throughout the proceedings Abdul Qayoom has appeared as attorney and Parokar of the petitioner and before the Appellate Court as well as in this Court he has filed affidavits at various stages. The facts brought oa record are that Mohammad Ali received injuries and suffered disease which made him completely crippled and unable to walk. I had asked Abdul Qayoom to bring the minors in Court and today thev are present here. Mohammad Ali is completely crippled and unable to walk. Whatever may be the reason for such inability will be investigated by the learned trial Court, but at this stage, I am concerned whether the learned Courts below were justified in altering the interim order of custody. From facts stated above, the learned Courts below were justified in holding that it will be in the welfare of the minors that interim custody is given to their father. The circumstances under which interim custody was given to the petitioner have radically chngsd. Tas DJtitioajr having married a stranger went away to Multan. She did not comply with order of the Court and seems to have removed the minors from the jurisdiction of the Court. In spite of penal provision resorted to be the learned trial Court the petitioner continued to avoid and disobey the order. The conduct of the petitioner has been contumacious. She has transferred the custody of the minors to his brother-in-law which she is not permitted to do. Presently she is not keeping the minors in her custody. In these changed circumstances, the trial Court in exercise of jurisdiction under section 12 could vary, alter or rescind its previous interim order and pass a esh interim order Such order passed by the trial Court cannot be termed as illegal, or without jurisdiction. The entire argument of learned counsel for the petitioner was that as the order dated 10-3-1984 is without jurisdiction all the subsequent orders ssed on 15-7-1984, 30-7-1984 and 27-3-1985 are illegal and of no legal effect. Execpt this plea no other ground has been urged to challenge the impugned orders. The order dated 10-3-1984 is unexceptionable, therefore, the petitioners plea fails. This petition is liable to be dismissed on the short ground that the petitioner has neither challenged nor sought any relief against the order dated 10-3-1984, but entire argument against the validity of the impurgned orders was that the order dated 10-3-1984 which is basis of all subsequent orders is without jurisdiction. In these circumstances such plea cannot fee entertained. For these reasons by the following short order the petition was dismissed :~ 'The minors have been brought iu Court. The interim custody in terms of the order passed by the learned Courts below is delivered to the respondent No. 3. The matter has been pending before the Trial Court since 1980. The learned trial Court should now proceed with the matter. The hearing is fixed on 21-7-1985 for which no further notice will be issued to the parties. On that date, the parties should produce their entire evidence. The learned trial Court should dispose of the matter within two months". (TQM) The petition is dismissed with cost. Petition dismisied.
PLJ 1985 Karachi 340 PLJ 1985 Karachi 340 Present : syed haider ali pirzada, J SULTAN PRESS LIMITED, Karachi-Appellant versus MUHAMMAD HASAN-Respondent First Rent Appeal No. 5<»9 of 1983, decided on 2-7-1985. (i) Sind Rented Premises Ordinance, 1979 (XVI! of 1979) -- -Ss. 15 (2) (vii) & 21 Eviction Personal use Ground of Respondent trying to obtain disputed premises from appellant far about last six years and apparently bent upon evicting him Mere assertion on part of landlord that he wanted to start business of Motor Training School falling short of proof required to establish that he in good faith needed premises for starting business Held : Mere ipsi dixit of landlord that he requires premises in dis pute ig good faith being not enough, Rent Coatroller failed to carry out his duty in ordering eviction of tenant (on ground of personal use) in absence of valid reasons in support of assertion of landlord. [Pp. 345 & 346]G, ff,J&L (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979) Ss. 15 (2) {vii) & 21 Eviction Personal need Ground of Rent Controller Duty ofHeld : Rent Controller to (be duty bound to, appreciate evidence on record and then write order by fairly and properly dealing with such evidence Landlord in case not establish ing his bonafide need or his requirement in good faith for his occu pation Held Marc ipsi dixit of landlord that he requires premises in good faith for his occupation being r.st enough, such assertion mast be supported by valid reasons Such reasons lacking in case Helu Rent Controller having failed to carry out his duty, his order (if evicion).to be set aside |P. 34b]/f & L (lii) Si, d Rented Premises Ordinance, 179 (XVII of 1979) - S, 15 2),'. ') Eviction Personal need Ground of Held : Land lord to be ca ired to allege and prove (certain) circumstances Qf facts going to prove his requirementMere wish convenience, whim or fancy of land lord not to be enough to show that he requires premises, in good faithHeld farther : Expression "requires in good faith" to mean that landlord requires premises for his reasonable needs and (seeks eviction) not on pretext of requiring additional accommodation with oblique motive of realising some extraneous purposeThere must be element of need which should be reasonable and bona fide before landlord be said to require and occupy premises for his own use. [P. 343]X (iv) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-
S. 15 (2) (v/i)~EvictionPersonal needGround ofLandlord Bona fides ofHeld : Full effect to be given to expression "requires in good faith" used in clause (v/i)Words "good faith" to mean honestly and not actuated by bad faith or oblique motiveMere wish or intention of landlord not to be sufficient to give him right to evict tenantHeld farther : Word "reasonable" though not ap pearing in Ordinance, question of reasonableness (also) to be relevant in deciding bona fides of landlord. [P. 343 & 344JB & C (v) Stud Rented Premises Ordinance, 1979 (XVII of 1979)
-S. 15 (2} (vii)EvictionPersonal needGround ofRent Con trollerDuty ofHeld : Duty to be enjoined upon Rent Controller to enquire nto requirement of landlord Controller on enquiry satisfied that requirement of landlord to be met by occupation of premisesHeld : Order of viction to be passed in such caseAll relevant factors, however, to be objectively considered by Controller before deciding such question. [P. 44] O (vi) Sind Rented Premises Ordinaace, 1979 (XVII of 1979)
S. 15 (2) (vii)EvictionPersonal need Bona fides ofHeld : Landlord to make out case for requirement of premises in good faithHeld further : All necessary details required for granting relief to be placed before Rent ControllerMere ipsi dixit of land lord that he required premises for his personal occupation or use. however, not to be enough Statements in this regard must be supported by valid reasons. [P. 344J E & F Syed Inayat AH, Advocate for Appellant. Mr. Nasim Farooqui, Advocate for Respondent. Date of hearing : 24-4-1985. judgment This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance (hereinafter called the said Ordinance) is directed against the order dated 11-6-1983 passed by the Vlth Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application of the respondent was allowed and the appellant was directed to hand over vacant possession of the disputed premises within two months from the date of the order. The facts which give rise to this appeal are that the respondent is owner of building on plot No. SR.7/32 S??aj Quarter?, Ka.ra.ch.i and the. appellant is tenant in respect of the ground floor of the said building at the monthly rent of Rs. 34o/-. The respondent filed eviction application bearing No 2201 of 19S2 against the appellant on the grounds of default and personal requirement for bis own use. The appellant resisted the application. The aopellant pleaded in its written-statement that the res pondent has not come with clean hands. It is emphatically denied that be required the premises in good faith for his own use. The respondent filed his own affidavit-in-evidence and he was crossexamined by the counsel of the appellant; In rebuttal the appellant examined its managing director laiyab Saifuddin and he was crossexamined by the counsel of the respondent. The appellant also examined Asbique Ali, Assistant Controller, K. D. A. The learned Rent Controller, on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No. 1 in the nagative and issue No 2 in the affirmative and allowed the eviction application on the ground of personal use only, vide his order dated 11-6-1983. The appellant abovenamed, being aggrieved by order dated 11-6-1983 of the Vlth Senior Civil Judge and Real Contr >ller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo, of appeal. Mr. Sayed Inayat Ali, the learned counsel for the appellant, has contended that the learned Rent Controller has : (a) 0) misread and mis-interpreted, (») omitted from consideration and (Hi) glossed over material pieces of evidence on record having vital bearing on the character, validity and veracity of the case. (6) The learned Rent Controller's approach to and treatment of the case and the discussion and analysis of the evidence on record is arbitrary, capricious, ad hoc and perfunctory. On the other hand Mr. Naseem Ahmed Farooqi, the learned counsel for the respondent, has urged that the learned Rent Controller has not misread the evidence. The order is not perverse but is in consonance with the evidence on record. So far as the propositions of law are concerned, by now they are well settled. On account of the conditions which the World War II had created, there was a great demand for accommodation, particularly in big cities like Karachi After partition there was efflux of refugees from India, as such there was. great demand for accommodation. In those days it became apparent that the landlords were exploiting the situation to their advantage. Not only the rent racketing was in vogue, but several mal practices were eraoloyed to enhance the rent and evict the tenants, if they are not amenable to their pressure. In order to check such exploitation and to bring the situation under control, the government of Sind pro mulgated Ordinances from time to time. In the year 1979 the Governor of Sind promulgated an Ordinance in pursuance of the proclamation of the fifth day of July, 1977 and Law (Continuance in Forcej Order, 1977. This Ordinance was known as Sind Rented Premises Ordi nance, 1979 (Ordinance XVII of 1979) The preamble to the said Ordi nance clearly indicates that it was promulgated to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within ur an areas. Therefore, it is obvious that the legislature wanted to make a provision for better control of premises and to pvent unreasonable eviction of tenants therefrom. The whole object of the said Ordinance is to provide for control of rents and eviction. Sections 14 and 15 of the said Ordinance specifically enumerate the grounds which will entitle the landlords to evict their tenants. Clause (vii) of subsection (2) of section 15 contains one of such grounds namely, that the landlord requires the premises in good faith for his own occupation or use for the occupation or use of his spouse or any of bis children. Then section 15 of the Ordinance provides that when the landlord, who has obtained the possession of the premises under section 14 or under clause (vii) of section IS, relets the building or premises to any other person other than the previous tenant or puts it to a use other than personal use within one year of such possession (i> he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained. (ii) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or premises, as the case may be, and the Controller shall make an order accordingly It is further clear that these provi sions have been enacted solely for the benefit of the tenants. From the phraseology used in clause (vii) of subsection (2) of section 15 of the said Ordinance, it is further clear that the landlord has to prove that he requires the premises in good faith. The expression "requires in good faith" has been considered by Superior Courts on severa occasions. Broadly stated mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord 'requires th premises in good faith'. The landlord must allege and prove certain circumstances or facts which go to prove bis requirement. The law doe: not require a landlord to establish need or absolute requirement without which he shall have no shelter over his head. What is meant by "require!; in good faith" is that the landlord requires the premises for his reasonabl needs and that he is not seeking eviction on the pretext 01 requiring additional accommodation with an oblique motive of realising some extraneous purpose. The term 'requires' means that there must b: an element of need before a landlord can be said to require premises for bis own use and occupy the premises. What is necessary is that he should need them for his own use and occupation. The need has to be reasonable and bonafide. The onus of proof of this is certainly on the landlord. Although the word 'reasonable do:s not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fides of the landlord. Gross unreasonableness may in proper circumstances lead B the Controller to reach a conclusion that the landlord's requirement is not in good faith. Therefore, while deciding the question of good faith, the reasonableness of the need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely, "requires in good faith". The words 'good faith' mean honestly and not actuated by bad faith or oblique motive Mere wish or intention of the landlord is not sufficient to give him a right to evict the tenant. As already observed the Ordinance is promulgated with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlords will be entitled to get the possession of their premises on tbe grounds enumerated therein One of such grounds is that a landlord requires the premises in good faith for his own occupation. Subsection (2) of section 15 further enjoins a duty upon the Controller to enquire into the requirement of the landlord and if on enquiry the Controller is satisfied that D the requirement of the iandiand will be met by occupation of the premises, then he has to pass an order of eviction. Therefore, all tbe relevant factors will have to be objectively considered before such a question is decided by the Controller. I am of tbe bumble opinion that for considering the true scope of clause (vii) of tbe sa-d Ordinance, the landlord has to make out a case for his requirement of the premises in good faith. For this purpose be must place before the Rent Controller all tbe necessary details which are required for granting relief. A mere ipse dixit of the landlord that he requires the premises for bis personal occupation or use is not enough. He must give details as to whether he requires tbe premises for residence or godown. If for residence, he must give details as to number of members of family and how he requires the premises. If for expansion of business, he must give details as to whether it is inadequate or if for new business, details of new business, his sources. If he owns other houses or buildings, he must sbow whether they are occupied and if vacant, why it is not available. If he owns other building which he sold, be must show under what circum stances it was sold. Unless the landlord gives such details, the tenant [cannot be expected to meet the case of landlord. The statement of tbe Filandlord must be supported by valid reasons as to how bis requirement is {genuine or in good faith. It is not disputed that it is a non-residential building and it was let out to the appellant where it is running a press and carrying on printing work under the name and style of Messrs Sultan Press Ltd, for the last more than 35 years. Tbe sole question for my consideration is whether the respondent has proved that he bona fide proposes to commence a business in the premises in question. It is not disputed that hs is a businessman. He is running Motor Training School, aiongwith his father. He wanted to start his own business of Motor Training School in the pertnises in question. The learned Rent Controller held that his request was bona fide or in good faith. In the eviction application a vague ground was given that he wanted to start bis own business of Motor Training School. In para 3 of affidavitin-evidence a different stand was taken, that is, he gained . mu-h experience in the said business and he wanted to expand his business. In para 5 of his affidavit still a different stand was taken, that is, he wanted to start his own branch of Motor Training School in his owo property, as such he wanted the premises in possession of the appellant for his persona! use. In para 5 of tbe affidavit be has taken a different stand, that is, the premises in possession of the appellant h sufficient'for his branch as nt would be able to park his cars inside the premises and at the same time he would be able to establish his office therein and the area is sufficient for parking twelve cars. That itself shows that the application is lacking in bona fides or in good faith and it cannot be said that the respondent has established his bona fide requirement for occupation. In the application he has stated that for his own business of Motor Training School for which he has no other pla;e of his own except the premises in possession of the appellant. It has come in evidence that he has one building in Ratan Taluo. According to him he sold the building. He replied to a question in crossexamination that he is not dealing in selling and purchasing of the buildings. He replied to another question that he has no other property at Serai or Ratan Talao. He admitted in his cross-examination that it was his property but he sold it about two years ago. it is advantageous to reproduce extract from his cross-examination which reads at under : "It is not a fact that I am dealing in selling and purchasing of the buildings. I have no other property except the one in dispute. It is not a fact that I have property at Sirai at Ratan TaUo. That was my property bus I have sold it abjut two years back. It is not a fact that after making some additions and alterations I sold the premises again says 1 had given it to the agent for its reconstruction to whom I sold the building. I do not know how the said agent disposed of that building". In these circumstances the burden was on him and he has to establish as to why he sold that building, He has not established in what circumstances he sold the building The respondent failed to establish that Ratan Talao property was sold by him in good faith. It appears that the respondent alongwith Muhammad Naqi purchased the building including the premises in dispute from Mist Mariam Bai in the year 1977. The previous owner intimated ths appellant. The appellant sent rent through ehtque which was received by the respondent but did not encash it. The appellant thereafter deposited the rent in the court He also took the ground of default in the ejectment application which was decided against him. He did not prefer any appeal against that finding as he had abondoned his ground of default, Ashique Ali, Assistant Controller of K. D. A. was examined in the instant case. He stated that respondent approached K.. D. A. for demolition of the building which was in his possession. The necessary permission was accorded to him for demolition of the portion in his possession. The appellant aiso applied for approval of plan on 20-7-1981 for constructing a building, The proposed building consists of shops and offices on the upper fioor. It seems that the permission was not accorded to "aim as he did not comply with certain conditions, The respondent had been trying to obtain the disputed premises fromi toe appellant since as far back as 1977 and it was apparent that the respondent was any how bent upon evseting the appellant from the disputed pre mises If. ih$. respondent was really serious about starling new business ol Motor Training School, fee would sot have waited for a period of four or five years before taking actioa to recover possessioa of the disputed premises from the appellant. These circumstances are borne oui by the evidence oa record. I A mere ipse dixit of the respondent that he requires the premises in Hldispute in good faith is not enough. It must be supported by valid rea- 'sons as to how his requirement is genuine. That is lacking in this case.I am of the humble opinion that the respondent has failed to establish that be genuinely required the disputed premises. I hold that what the evidence showed was mere assertion on the part of the respondent that he wanted to start business of Motor Training School and that fell short of (he proof required to establish that the respondent in good faith required the disputed premises for starting business. As already observed in earlier part of this judgment that the respondent has not established his honafide need or his requirement in good faith for bis occupation, a mere ipse dixit of the respondent that he requires the premises in good faith for his occupation is not enough. It must be supported by valid reasons as to how bis requirement or need is genuine. That is lacking in the present case. In this context, therefore, it is the duty of the learned Rent Controller to properly appreciate evidence on record and then to write an order indicating that the evidence has been fairly and properly dealt with. In this view of the matter, in my opinion, the learned counsel for the lippellant was right that the learned Rent Controller has failed to carry put his duty, and therefore, his order be set aside. I accordingly set aside Ibis order and dismiss the ejectment application, and allow the appeal. {There will be no order as to costs. (TQM) Appeal allowed.
PLJ 1985 Lahore 1 PLJ 1985 Lahore 1 [Baoawalpur Bench] Present: muhammad muni khan, J SHAMAS-UD-DIN-Petitioner versus Mst. JEW AN and OthersRespondents Civil Revision No. 302-84/BWP, decided on 16-4M984. (i) Specific Relief Act (I of 1877) S. 42Legal heirsStatus of -i- DeclarationSuit for Competency ofWhole estate of deceased devolving automatically on heirs at moment of deathHeld : Suit for mere declaration as to legal status of plaintiffs to be quite maintainable in matters of inheritance, [P. 6}D (ii) Specific Relief Act (I of 1877)- S. 42 read with. Limitation Act (IX of 1908)Art. 120Declara tion Suit for-^Limitation-Period ofStart of-^Cause of action- Accrual ofHeld : Even last attack on right of plaintiff to give htm fresh cause of action for purpose of .limitation Suit, for declara tion, held further, to be competently filed within six years of last attack on rights of plaintiff. [P. 6]F (HO Judge
Judge of subordinate Court Inefficiency by High Court Taking notice ofCivil Judge approaching caw ia entirely illegal manner for motives best known to 'himCourt obviously bent ilpon deciding case in favour of defendant irrespective of weight of eviderce on recordrieW : Civil Judge apparently being inefficient, file on administrative side (of High Court) to be opened against him. [Pp. 6 & 7]C & G
CustomProof ofOnus ofSpecial custom overriding exhibited and to be made in to be prima fatfe law alleged by defendantHeld : Valid custom to be establ defendant by showing it to be ancient, iuvariable, unifc Continuous through clear and unambiguous evidenceHeld Quantum of evidence necessary o prove custom being much 'than that required to negate it, instances in which alleged acted upon, judicial decisions .wherein custom recogn revenue and'private record to bigoted, prove or negate customNo presumption existence of custom though wt " piece of evidence. [P. 4 & 5 }A Customary Law Custom Proof of Petitioner/defendant hopelessly failing establish custom in derogation of personal' law bf partiesNo instances of contested/abandoned claim by female giyen-^Mutations relied not shown to have been sanctioned under customNo judicial . decision tendered in evidence to .prove judicial recognition of customEven oral evidence not strong enough to prove custom Wailb-ul-Arz also not supporting, defendantHeld: Evidence of petitioner not to be strong enough to establish custom overriding personal law of parties. [P. 5j£ (t!) Co-beirs . -Possession of one co-heirPresumption regardingHeld t Posses sion qf one co-heir to be presumed as possession of all co-heirs. Mr.-'Jaffar Hathmi, Advocate for Petitioner. Date of bearing : 16-6-1984. order Noor Ahmad predecessor-in-interest of the parties owned ] .measuring Ml kanals in village Murad Wah, Tehsil Khenw. i&4r died in the year 1933 leaving behind one on namely Shms^ud-LKQ petitioner and two daughters namely Afjf. Jiwan Mai respondent No. L «nft Af«. Momal Ivlai mother/predecessor-in-interest of espondents o. -2 t«r 7. On 28-6-1933, the entire land left by Noor Ahmad was mutated of Shams-ud-Din petitioner the son to the exclusion of )f«^ through mutation of anheritance o. 128. . of Mst. Nomal Mai deceased daughter of Noor Ahmad filed suit , Sbanm-ud-Din petitioner for declaration that they being the legal 'bet rs were owners in occupation of half, of the land left by Noor &tnaad deceased and as such Mutation No. 128 attested on 28-6-1933 i& favour of Shams-ud-Din petitioner/defendant atone was void and ineffective ob their rights. As consequential relief, it was prayed that the petitioner/ defendant be restrained from interfering with their rights. For the purpose of limitation and maintainability of the suit it was stated in the pUint-ihat 2. On 25-3-1981 Mst. Jiwan Mai respondent No. V Vh ,d»|glu«r, Fida Ahmad and .six other respondents Nos. 2 to 7 7-B Whether the suit property is not properly effect ? OPD. 8. Relief.',' Tbe trial Court found all issues except Issue No. 5 againsf, plaintiffs and dismissed the suit on 22-1-1984, Feeling aggr[< dents/plaintiffs filed appeal before the learned District Judge who the same oa 23-5-1984. The learned District Judge white Issue No. 7-A first came to the conclusion that the parties w«ri by the Islamic Law in matters of inheritance and tbe respondent were entitled to inherit the suit land On the point of limitation at>d maintainability of the suit the learned District Judge was of the vlew^ that since the respondents/plaintiffs were co-heirs of the estate with their brother Shams-ud-Din petitioner/defendant therefore the suit was not only maintainable but also not barred by time. ' J " ' 3, Learned counsel for the petitioner/defendant vehemently challeng ing the judgment and decree of the learned District Judge submitted that (i) on the question of ustom, the learned District judge reversed the well reasoned judgment of the trial Court without factual aad legal justification inasmuch as his finding is based on rats- eading/aon-reading of oral/ documentary evidence particularly statement of Fida Muhammad PW/3 wherein te admits that some of the female relatives of the parties ailed to inherit the property on account of custom ; (ii) that the petitioner/ defendant has successfully aad satisfactorily proved that family of Noor Ahmad eceased in matter of inheritance was governed by the custom whereby the petitioner/defendant alone was entitled to succeed to property of her fa'th r (iii) Relied on uqnun and others v. Gul Mabamaad aa«r others (1984 SCMR 63) and Ms't. Karini Jan aod 3 others v. Aowir Ktwn and another iPLD 1984 Peshawar 111)vto contend hat mutation No. 218 sooght to' be declared in-operative was attested on 28-6-1933 and suit was instituted on'25-3-1981 i.e. about 48 hours after the cause of action accrued to respondents/plaintiffs; that old mutations are aot to be disturbed after such a long time with in tbe circu outpaces of {pe case, the . suit was arred by time ; (iv) since after the death, of Moor Afeinad the respondent/plaintiff neither occupied the land nor did enjoy usufruct therefore it shall be presumed as if hey had rjeHnquisksd. thfir rights if any and as such they were estopped to file suit (v) that suit for mire declaration without prayer fot possession was not maintainable nd (viy, - that the impugned judgment of learned District Judge being brief, the learned District Judge. had not applied mind properly to evidence on record 4 I have considered the arguments advanced by the learned counsel for the petitioner/defendant with care and have not been able to persuade myself to agree with him. Since special custom over-riding personal, law was alleged by the defendaats, therefore, it was for him to establish valid ;ustom by showing that it was ancient, invariable, uniform aad continuous through clear and un-ambiguous evidence because quantum of evidence necessary to prove custom is much mare thaa that required to negate it. No presumption can be made in favour of an existence of custom. Wajib~ul-Arz is prtm'a faele a strong of vidence. The parties may quote numerous instances in which alleged-custom had been acted upon ; exhibit judicial decision wherein custom has been recognized and rely on revenue ecord' aad private record to prove or negate a custom. Evidence however must be such that claim was contested and abandoned by someone who if custom had not existed, would have been entitled o it. Instances and judicial decisions be such that a female claimed her share but tbe same was denied to her on the strength of custom. Since q&eition of a custom is more; or less a question of law iid it is a cste of judgments at variance where inheritance .matter is involved therefore in the larger interest of justice I have examined/ appraised oral/documentary evidence placed 09 record relating o.' tbe question of custom. The onus to prove issue No. ?-A relating to custom was on the petitioner/defendant. He examined Rasool Bukhsh DW. 1 and Abdur Rahim DVV. 2. He tendered in vidence edegree tables D. 1 and D 2, copies of khasra girdawari D. 3 and D. 4, mutations of inheritance D.StoD. 8. In rebuttal Fida Ahmad PW. 3 appeared as a witness. Besides copy of Wajib- lrz Ex. P. 6, copies of mutations of inheritance P. 3 to P. 5 and P. 7 to P 11 we're tendered in evidence. The trial Court after having discussed the evidence of the plaintiffi/respondents stated that "On the, contrary, the defendant in order to prove custom produced documentary evidence Ex. D.I, D. 2, D. 5 to D. 7. , These documents are certified copies of the pedigree table and mutations. It can be easily inferred from tbe examination of these documents that tbe parties were governed under customary law as no. inheritance has been given to tbe women". On independent assessment of evidence in the light of guiding principles laid down by the Superior Courts for the appreciation of the evidence relatable to custom and the above stated test I find that the petitioner/ defendant hopelessly failed to establish custom in derogation of persona law of the parties. He failed to give instances of .a cont:sted/abandoned claim by a female. Tbe three mutations relied on by him do not show that the same were sanctioned under custom. The female heirs if an were neithst present at the time of attestation of thee mutattoas' nor did they abandon their share at tbe time of the attestation of the mutation No judicial decision has been tendered in evidence to prove judicial recognition of the custom. ' The oral evidence adduced by the dcfeada is b it strong enough to prove a custom, >n so far as the defendant did not care and, dare' to appear as a witness. Before me the learned counsil has failed to quote/point o,u| any instance wherein feitule-haying claimed iaheritance under personal -law was refused the same on account of custom Wajib-ul-Arz does not support him. The statement of Fida Ahm P. W. 3 when read as a wh He it cannot be said tnat he admitted custom as alleged by the petitioner/defendant^ For ail these reasons I an of the vie that tb« evidence of petitioner/defendant is not strong enough to establish custom over riding parsonal law of parties. The learaed District Judge has applied his conscious mind to the matter in controversy. .He has given sound and cogent reasons in support of the conclusion arrived at by him. J am convinced that in the circumstances and on the evidence on record, tbe learned District Judge was perfectly justified .to hold that parties were governed by Islamic Law in the matters of inheritance whereas the judgment of the learned trial Court suffers from misre.adtug of tbe evidence inasmuch as documents relied on by aim do nor mutations were sanctioned under custom. He he failed to question of custom in its true perspective. From the ment, it is very much obvious that he perhaps did «Krt lappreciate the question of custom. I cannot help-learned Civil Judge for motives best known to him appr in an entirely illegal manner in so far as be considered it discuss the plaintiffs/respotBtfents evidence o» issue No. then the defendant's evidence, this is to say at least, a topsyHtrvey way of dealing with the question oC custom, the onus to prove of ttae same was on the petitioner/defendant. He should have first discussed the defendant's evidence and come to an independent finding on the truNror falsity of the same and should then have examined the evidence of the respondents/plaintiffs' in the light of circumstance brought on record. From judgment His very much obvious that the trial Court was bent upon deciding the case in favour of the defendant/petitioner irrespective of the weight of the evidence on record^ 5. Coming to the objections raised by the learned counsel as to the maintainability, estoppel and limitation, i find that in matters of inderitance, a suit for mere declaration as to legal status of pl<un»fls/respon- D dents was quite maintainable because whole estate devolves on heirs at the moment of death utomatically and is not postponed till the attestation of mutation and is not suspended whatever 4 the reasons may be. £ In -this view of the matter, possession of a co-heir has to be presumed ss possession of the co-heirs. In the case in hand, .the plain tifL/respandents, claim joint possession. In para. No. 2 of the plaint, it has stated that: If for the sake of arguments, it is assumed that they had not _ participated in produce, that aloof»;?»duld not cjaiiitute conscious reli.iq.aisnffl;nt. It is worth notice that t^spstitiotur/dsfeaJdatxlid njt ptjaJ any aj^rse possession. As far the case law relied on by the learned counsel, that i« quite distinguishable inasmuch as in the instant case, the plaintiffs/ respondents not only asserted joint possession of the suit land bat also claimed faiarruf' over the sam. Blaming petitionw^efeaasitt of mis-representation, they specifically stated in flic pfcwrt that soa^e of action arojs six months before the fttiaj of be suit. It is well settled that even, last attack on the right of plaintiff would give, him fresfc ^Mse jf action for the" puroose of limitation attd;tft« he nwy file surf for declaration within six years of last attack on his rights under Article 12$, of Umitation Act. Furthermore it is a case hff4 real and substantial justice has been done by the learned District Judge according to law. For what has been stated above, it is not a fit case for interference with the judgment and decree of the learned District Judge,-in exercise of the revisional powers of this Court. Dismissed in limine Before parting with the judgment 1 would like to add that! Sh: Abdul Salam, Civil Judge Khanpur appears to be inefficient. Let aL file on administration 'side be opened against him and copies of tber judgments of Civif Judge, District Judge and this judgment be placed! therein. The file so opened be produced before me for further action. TQM) Revision dismissed
PLJ 1985 Lahore 7 PLJ 1985 Lahore 7 Present ' muhammad afzal lone, J Afst. GULZAR BEGUMPetitioner versus R1AZ MALIK and three Others - Respondents Writ Petition No. 3624/83, decided on I2-7.19M. (i) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)- S. 17 [as amended by Pun jab Urban Rent Restriction (Amendment) Ordinance (IX of 1979)]Rent Controller Order of Execution ofForum fdrChange inHeld : Replacement of. civil court by Rent Controller being not undesigned, such variatioa to be indicative of intention of law-maker to take away execution 'of order from civil - court and confer it on special tribunal. [P. IQ]A PLD 1965 SC 459 ref. PLJ 1982 Lahore 435 not followed. (ii) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959) S. 17 [as amended by Punjab Urban Rent Restriction (Amend ment) Ordiriaifce (IX of 1979)]Ejectment order Execution of Held : Ejectment order, in reality, though no decree, S. 17 requires it jto be treated as decree for specific purpose of executing same Held further f Statutory fiction introduced by S. 17, however not to be stretched too far by clothing Rent Controller with status of Court. [P. 11]5&D (iii) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)- -S. 17 [as amended by Punjab Urban Rent Restriction (Amend ment) Ordinance (IX of 1979)} and Civil. Procedure Code (V of 1908)O.-XXI, Rr. 99 to 101-pEjectment order Execution of Civil Court and, therefore, he is deemed to be a 'Court against whom an ejectment order is passed, a 'ji opinion of the learned Judge, if a person other than the j claims to be the owner, of the property in dispute, his ot behalf, can be adjudicated upon by the Rent Controller, counsel also referred to M/s Bambino Ltd. v. M/ Seiner Lid and another (PLJ 1983 S. C. SIS) to urge, that in _ ejectment order, the Rent Qpfrolkr can follow any equitable , including the provisions of Order XXI Rule 100 and 101 C" investigate tie claim of a party, other .than the judgmentpossessed f rom the imrnovablc property. It, therefore, was, argued, that the Rent Controller should have held an inquiry into question ,of petitioner's title but he illegally declined to exffr'" jurisdiction lawfully vested in him. Likewise, the order of the Addl. District Judge, was, also dubbed as illegal. 5. For discovering the true import of the amendment, section f 7, as existing, before and after the amendment, is set out below : Before Amendment: "Every order made under section 10 or section 13, and every order passed on appeal under section IS bhall be executed by a Civil Court having jurisdiction in the area as if -- 3aE ^ decree of that Cour After Amendmeat "Every order made under section 10, section 13, section 13-B and every order passed in appeal under section IS shall be executed by the Controller as f it were a decree of a Civil Court Evidently, the amendment, does not tamper with the- mandate given by the unamended section 17, that an ejectment order shall be enforced u a decree of a Civil Court. The presumptive character of the ejectment order in this respect, remains unaltered. However, there is a change in the forum entrusted with the execution of the ejectment order, and the Civil Court'replaced by the 'Rent Controller. J bis variation, is, not undesigned. It is indicative of the intention of the law-maker,' to take away such execution from the Civil Court and confer it on a special Tribunal, which as held in. Knadiai MobyMolB v. Rehnat All (PLD 1965 S C. 459) while performing its functions, under the Ordinance does not 'act as a Court and at the most acts in a quasi-judicial capacity. I may say with utmost respect, that in Malik Mvkannad Skat's case the atten tion of the learned Judge, was, not pointedly invited to the effect of'the amendment, resulting in change of jurisdiction. 6. Section 17 was examined in Fazal Began v. Y. M. C. A. (PLJ 1979 S. C. 30) and it would be useful td refer here to the foltowiug observations made by Muhammad Akram J : "In coming to this conclusion, however, I am not «omiodf»l of the provisions contained in section 17 of the Urban Rent Restric tion Ordinance, 19S9. It, inter alia, lays down that every order make use of any of the provisions of the C. P. C. has to be executed by him as if it were a decree of a departure from the relevant provisions of C. P. C, is not perao course, the provisions relating to the filing an.d hearing of the stand excluded. In the executionroceedings, therefore, the (roller, cannot have a free band to follow any procedure. 0 when the very ground on which an objector conies before ninai on the egation of the exkterice of relationship of lan 9. The petitioner's reliance on the case of M/s Bambino Ltd., to be discussed. In that case, the Supreme Court, examined of the Sind Rental Premises Act, 1979 under which an order Rent Controller or an appellate Authority has to be executed manner» as may be determined by the Controller, or as the case may be, by the Appellate Authority. The observations made by the Suprette Court, in that precedent, are, with reference o ection 22, but this seettoa is altogether different from section 17 of the Ordinance. This authority, therefore, has no bearing on the instant case. - . 10. The abolition of the remedy before the «xecattBt Court, of a {person not bound by the ejectment order, may lead to hardship but«i Jthere is no ambiguity in the language of the Statute, the Court, thm(ore, |cannot be influenced by such a consideration. The questions, as to whether or not such a person, can file'a Civil suit, and that the Rent Controller, has the same powers as enjoyed by an executing Court, to go behind the decree and refuse execution, if the decree is found, to be void, - or incapable of execution, are not in issue, in this case, and, therefore, have not been touched upon. 11. la this view of the matter, the Tribunals below rjghtiy refused to take cognizance of the petitioner's objection-petition. 12. For ail these reasons this writ .pet it ion is dismissed but th parties are left to bear their own costs TQM) Petition dismissed.
1985 Lahore 12 1985 Lahore 12 Present: muhammad apzal lone, J PROVINCE Of PUNJAB through, Secretary, Government of Punjab, Housing & Physical Planning Department, Lahore and AnotherPetitiotiers versus DISTRICT JUDGE, Lahore and three Others-Respondents Writ Petition No. 3987 of 1982, decided on I2-7-19S4. (i) Arbitration Act (X of 1940)- -S. 2 (c) and Civil Cotwts Ordinance {W. P.. Ord. II of 1962) S. 18 Arbitration matters Competency of court to decide AppealForum ofHeld : 'Reference'having been considered as identical to suit, amount or value of subject-matter of same to furnish basis for fixation of forum for hearing applicationHeld farther : There being no other provision for determining jurisdictional vahiJc>r. purposes of appeal, such value to enure for ascer tainment of forum of appeal as well. [P. 16] A (ii) Arbitration Act (X of 1940)- Ss. 2 (c) & 44 & Arbitration RulesR. 4Arbitration matters- CourtPecuniary jurisdiction ofApplicationValue ofSubjectmatter ofHeld : Value of subject-matter for purposes of pecuniary jurisdiction of court to! be necessarily given in application. [P. 19JC (ill) Arbitration Act (X of 1940)-
Ss 2 fe) & 44, Arbitration RulesR. 4 & Civil Procedure Code (V of 1908)$. 115r-CdttrtOrder of Revision against Forum forDemand for payment at enhanced rates constituting .real dispute between parties Held : Amount claimed by respondents under "reference to be deciding factor for ascertaining whether revision (against order of Civil Judge) ties before District Court or High Court. [P. 16]B (iv) Arbitration Act (X of 1940) Ss. 2 (c), 8 & 44, Arbitration Rules-R. 4 & Civil Procedure Code (V of 1908)S. 115CourtOrder ofRevision agains t Forum forHeld: Irrespective of relief claimed by respondents, value of subject-matter of "reference" to be test for discovering competency of revision before District Court or High CourtCivil lodge dis missing respondent's fresh application for appointment of arbitrator to decide disputes subsisting., between partiesValue of subject-matter of reference admittedly exceeding fifty thousand rupees Held : Revision against such order of Civil Judge being competent before High Court only, assumption of jurisdiction by District Judge to be without lawful authority. [P. 19}D & E PLJ 1983 Lab. 422 & PLD 1967 Lab. Ill disiinguished. Mr. Muhammad Akram Khawaja, Advocate for Petitioners. Mr. 4<.£. £>o$af, Advocate for Respondents 2 to 4. Date of heariag: 25-2-1984. judgment The facts, are, that the Consortium of Progressive Consultants, .res' pondent No. 2 herein, in early 1973, entered into an agreement, with the ProvinciarGovernment, for construction of certain multi-storied flats, in Chak No. 213/RB, Faisalabad. Clause 25-A of the agreement provided, that the disputes arising between the parties, would be decided through arbitration. The Officer on Special Duty, Government of Punjab , provincb or punjab v. dutmct &do! (Muhammad Aftal Lout, /) Housing and Physical Planning Department, was, the sole named therein. It appears that while the project was under the respondents demanded esclation of rates, but the G accede to their demand wholly and further declined to make the arbitrator. Thereupon, respondent No. 2 filed an ap section 8 of thje Arbitration Act, but it was rejected, by t Court on 25-11-75, on the ground that the Consortium being act entity, was, incompetent to sue. This was followed by a application,'brought by respondents. No. 2 and 3 . jointly, course of its bearing-, as is evident from Annex : 'C' to-the writ the parties entered into an agreement dated 30-10-1977, respondents had to withdraw their application, which was in as a suit, and Mr. Saeed Hassan Zaidi, Director Housing and Planning Circle, Bahawalpur, was, appointed as an arbitrator to «d, upon their claims, if any, against the department. Acting agreement, the respondents withdrew their application. The order by the learned Senior Civil Judge, in this behalf is dated 5-i 2-177. 2. It is admitted by both the sides that in pursuance of we meat aforesaid,, the respondents made a -reference to Mr. Saeed Ha«o Zaidi, .who in-the first instance, refused to proceed with the reference; ob account of the objection raised by the department but .later on informed .the parties that he, was, unable to act as an. arbitrator, due to personal reasons. It was, thereafter thatthe respondents filed a fresh application under section 8, praying that since the named arbitrator had declined to act as arbitrator, some retired senior Engineer, of any Governmeitt Department, be appointed as arbitrator to decide the disputed subsisting between the parties. 3. This application was dismissed by the learned Senior Civil J( by his rder dated 4-10-1981. He ook the view, that the agreemeW (Annex: 'C') was, in the nature of a compromise deed, under which the respondents withdrew their previous application unconditionally and that in any case, paly the person namsd in the deed, could decidV their putes ; by bis refusal to act as arbitrator, the agreement frustrated and, therefore, the Court had»no power to supply th The respondents then invoked the revisional jurisdiction of the learned District Judge, under section I Is, C. P. C. The ,petitioiierft opposed the maintainability of the revision petition and raised the ?|e that the District Court, lacked pecuniary jurisdiction. This objectioa «tt founded on section (2) (c) of the Arbitration Act, under which, they coa tended, that the value of the subject-matter of the reference, furnished Ac batii for determining the pecuniary jurisdiction of the Court, and a '«&- value exceeded Rs. 50,000, the District Court, was not competent to Iwar the revision. 4. This argument was repelled by the learned District Judge. la h» opinion, rule 6 of the Rule framed under the Suit Valuation Act, 1897, providing a mode for fixing the value of the application, under the Arbi tration Act, enumerates only applications under sections 21 ft 31, &&! alone need to be valued in accordance with he subject-matter of the pro perty in dispute. He held that by the process- of elemioation, an cation under section 8, could not be reated at par with the applications under section 21 ft 31 of the time Act. He also referred to die schedule to the Rules framed under the Suit Valuation Act, which lays down that the applications and petitions falling under Articles 1, 3 of the Court Fee Act, do not require any jurisdictional value. He maintained that there was no cogent reason to exclude an application under section 8, from the purview of the miscellaneous for which no jurisdictional value was necessary. He, however, reversed the trial Court's findings, that the vacancy occuning, due to Mr. Saeed Hassan Zaidi's refusal to act as arbitrator, could not baffled in, and observed that an arbitrator could be appointed in his place by the Court. He, thus, accepted the revision petitido and remanded the case to the lower Court with the direction to supply the vacancy of the arbitrator who would be required to proceed with the reference. The order dated 1-9-1982 passed by the learned District Judge in this behalf, has been called in question through this writ petition. 6. The question of law, falling for determination in this writ peti tion, is as to whether or not the hearing of the revision petition, was within the competence of the .learned District Judge. In this connection Kh. Muhammad Akram, Advocate, the learned counsel for the petitioners strenoiuly argued that the value of the application, for jurisdictional purposes, would fix the Court, competent to dispose it off and also for hearing the revision. He referred to section 2 (c) of the Arbitration Act, which defines the Courts competent to hear the matters under the Act, in the following terms:"Court" means a Civil ourt having jurisdiction to decide the question forming the subject-matter of the reference, if the same had been the subject matter of a suitThus, according to him, only that Court would have, jurisdiction to bear such an application which could competently decide the suit, if the subject matter of the reference, had been the subject matter of the suit. He urged that in the instant case the subject matter of the reference constituted the respondents'claim for payment on account of esclation, which acceded much, beyond Rs. 50,000 Resultantly. in the submission of the learned counsel, intuch a case, a revision from an order of the trial Court, is competent before the High Court and not before the District Court. He heavily relied upon M. A. Jalcet v. S«l«h od Din (PLJ 1983 Lab. 622). In that case, in the course of discussion on the issue regarding forum, before whom an appeal, from the orders passed by the trial Court, making an award rule of the Court, was competent, the learned Judge observed that the applications, under sections S, 8 and 9 of the Arbitration Act, are maintainable before a-Cpurt, which is possessed of the jurisdiction to entertain and decide the suit'With respect to the subject matter-of the reference. 7. In reply to these arguments Mr. A. K. Dogar, Advocate, who appeared on behalf of the respondents, supported the reasoning which impressed the learned District Judge. He submitted that section 2 (c) is relevant poly for ascertaining the original forum before whom the action may competently be commenced. According to him the expression "limit of appellate jurisdiction" figuring in section 1 IS (2), is to be construed in the light of section 18 of the Civil Courts Ordinance, 1962. It ordains,' when the "value" of the original suit in which the decree or order been made, does not exceed Rs. 50,000 the appeal lies to the For connotation of the word "value he referred to clause of the Ordinance. 8. Under section 115, C. P. C , both the High Court and Court, can exercise revisional jurisdiction. There is, however, on the exercise of such jurisdiction by the latter. It can exercise jurisdiction, only m those cases, wherein the value of the su' does not exceed its appellate jurisdiction. The appellate regulated by section 18 of the West Pakistan Civil Courts Ordinance, It has already been stated, that' under this section, If the ''vate?' t original suit is not more than Rs. 50,000 the appeal from the decree passed therein, lies to the District Court and in other cam to Court. As pointed out by the learned counsel, fos the rcspondente, terra "value" has been denned in section 2 (b) of the Ordinance, reads as follows : ... "Value" used with reference to a suit means value of the subject matter of tbe suit." Under section 2 (c) of the Arbitration Act, a "reference" is to be ceasidered as Identical to a suit, and the amount or value, of the subject matter of the "reference" urnishes the basis for fixation ot the. forum, for hearing .|tbe application. Further, there being no othsr provision for determining the jurisdictional value, for the purposrs f the appeal, under section 18, such .value, shall enure, for ascertainment of the forum of the appeal as well; on the footing whereof, the forum competent to hear the evision, can be decided. The view, that the value of the subject matter of the application determines the forum of appeal, also finds support from the precedent cited by he learned counsel for the petitioners. 9. (t may be added, that by the term "reference" as defined it» section 2 (e), is, meant the submission of a particular dispute to an trator, under the arbitration agreement. The assertion of a right by qi party and its denial by the other, constitutes a dispute. the iostant case, he demand for payment at the enhanced rate & dispute between the parties. It, thus, follows that ttfe, am&rnt claimed by th'e respondents, under the reference" would be the deciding factor, for ascertaining whether the revisidn lies before the District , Court or the High Court. It cannot be refuted that in the stimation of the, respondents, the amount due to them, from the petitioners exceeds for beyond Rs. 50,00 ,10. It is idle on the part of the respondents'learned counsel, to stress thai section 2 (c)? is relevant only for the determination of the forum, competent to take! cognizance of the original cause, IFhis contention hardly improves their case, for, the value put on the subject matter, involved in the application, as already observed, by virtue of section 18, fixes the limit of the appellate jurisdiction, wtjicfa. prescribes the limit of the revisional jurisdiction. If such value is more than Rs. 50,000 evident ly the appeal would lie before the High Court and consequently, the re vision too would be competent before the High Court only. 11. It, therefore, has got to be seen that what amount or the value of the subject matter of the application has been declared therein. Before 16. Article! No. 1, 13 of the Schedule to which reference has been invited by Mr. Dogar, include applications and petitions under other statutes and do not specify the applications fifed under tbe provisions of the Arbitration Act. Conceivably, the argument,, rested on the entry in the Schedule, therefore, cannot render any help to the respondents and the learned District Judge clearly fell in error, in relying upon this entry. Likewise, tbe argument that, the application in question, being'a miscel laneous application does ; not require juris dictional value, is, also not tenable. As would be evident, from the foregoing discussion, section 2 (c) read with rule 4, enjoins that the value of the subject matter of the appli-/ c cation, for the purposes of pecuniary jurisdiction of tbe Court, must bel mentioned therein. I have noticed that unfortunately the subordinate! Courts do not insist upon strict compliance-of this rule. Resultantly, from the point of view of pecuniary jurisdiction, not unoften, a confusion abounds when the matter is lifted before the appellate or the revisional Court. 17. On behalf of the respondents, it has been lastly urged that even if, section 2 (c) of the Arbitration Act, is attracted to the exclusion of the Suit Valuation Act, the term "subject matter" does not necessarily imply the value of the property in suit and in certain cases it is confined to the relief claimed therein. Reliance has been placed on Karamat Ullah v. GevemcBt of West Pakistan (PLD 1967 Lab. 171) to support this pro position. It is contended that since in the application under section 8 the only relief sought, is, tbe filling in of the vacancy created, due to the arbitrator's refusal to act, the value of the respondents' claim, requiring adjudication by the Arbitrator, is not relevant, for determination of its . jurisdictional value. 18. The precedent aforesaid,relates to a case in which the retirement from service of the petitioners therein, was, declared as without lawful authority, in exercise of the constitutional jurisdiction of the -High Court. Tbe Government intended to file an appeal to the Supreme Court, and moved the High Court under section 151, C. p. C. for suspension of the implementation of its orders. The High Court maintained, that the grant of interim relief, was controlled by tbe provisions of Order XL V Rale 13, C. P. C., and therefore, the application under section 151,'C. P. C. did not lie. In repelling the Government contention the Court observed that there, was, no order capable of being executed and further added "that a cause of action in a suit can also be treated as subject matter within the meaning of clause (d) of rule 13 of Order XLV. These observations are qualified by the facts df the petition before the Court, and have no bearing on the case in hand. In view of the clear cut language of section 1 (c) and rule 4, irrespective of the relief claimed by the respondents, the value of the subject matter of tbe "reference" is the test for discovering, as to whether the revision lies before the District Court or the High Court. When fudged in the light of this test, I am not left in any manner of doubt the High Court aad the Judge, was without lawthat tbe revision, was, competent only before assumption of jurisdiction by the learned District ful authority. 9. So far as the jurisdictional issue is concerned, the deck stands cleared. It may be observed that both the parties addressed-the Court, on merits also, on the point as to whether or not filling in of ttft the nominated arbitrator, was, envisaged by the agreement datni but in view of the order I propose to pass His unnecessary for :4B to decftle this controversy in this petition. 20. For the foregoing reasons this writ petition is accepted «fid the impugned order declared to have been passed without lawful authority. This order t however, shall - not debar the respondents from learned. District Judge, in accordance with law, that the meaMrtfldum of revision may be returned to them, for p.csentation before the pfoper Court. The parties are left to bear their own costs.' (TQM) Petition Dissmissed
PL J 1985 Lahore 20 PL J 1985 Lahore 20 Present.: . manzoor hussain' sial, J MUHAMMAD HUSSAIN BHATTI-Petitioner versus DISTRICT MAGISTRATE, Gujrat-Respoadent Writ Petition No. 4053 of 1984, decided on 23-9-1984. U) Police Act (V of 1861) -S. 30 read with Provisional Constitution Order (CMLA's 1 of 1981)Art. 9Public assemblies aad processions-Regulation of LicenceGrant of Application forPetitioner apt shown to have acted mala fide or for some ulterior motive in moving application . for third time for grant of licence to take out Zuljinah and Alton procession for participating in religious ceremony or observance- Held : Nobody else except petitioner having applied for grant of lic ence to take out procession mere fact of route which procession to follow being predominately occupied by Sunnis opposed to taking out of procession not to empower District Magistrate to refuse grant of licence to petitionerHeld farther: Mishap regarding death of one Sikh police officer taken place in 1537 on account of secretarial! differences in town hardly to be pressed into service for entertaining reasonable apprehension leading to breach of peace after such long time Impufcded order of District Magistrate rejecting peti tioner's application for licence to take out Muharram procession in circumstances declared to be without lawful authority and of no legal effect. [Pp. 24 & 23M. B,C&D PU 1983 SC 348 re/, (tt) Provisional Constitution Order (CMLA's 1-«f 1981)-
Art. 9 read with Police Act (V of 1861)S. 30Religious processionLicence to take outGrant ofPetitioner not shown to have acted mala fide or for some ulterior motive in moving application for third time for grant of licence to take out religious processionDistrict Magistrate, however rejecting such application by relying on police report regarding tension prevailing among Sunnis and ShiasHeld : District Magistrate being under k legal obligation to isue licence, rejection of application to take out % Mubarram procession to be without lawful authority and of no legal effect- Conditions deemed necessary to avoid breach of peace and to ensure maintenance of law and order on such occasions, however, to be (competently) imposed. [P. 24]Z> (iit) Promionil Constitution Onto (CMLA's 1 of 1981)-
Art. 9-See : Police Act (V of 1861)S. 30. [P, 24 & 25}A,BC & D. Police Act (V of 181)- 30See : Provisional Constitution Order (CMLA's 1 of 1981)Art. 9. [P. 24]D . Mr. S. Sajjatl Raza Jafari, Advocate for Petitioner. Mr. & M. Zubair, A. A. G. for Respondent. Date of hearing : 239-1984. judgement Tbe petitioner by means of this Constitutional petition has assailed order dated 4-9-1984 of the District Magistrate, Gujrat whereby he rejected petitioner's application for grant of licence to take out 'Zuljinah' and M/a/n processions during the ensuing month of Muharram-ul-Haram. 2. The petitioner is resident of, Kunjah Town , District Gujrat. -He - professes Shia faith and is President of Anjuman-e-Darul Hussain (Regd.), _ Kunjah, District Gujrat. It appears from the available record that on 27-1-1981 be applied for grant of licence to take out "Alam" procession on 5th of Mubarram in Kuojah Town but his application was rejected on 7-2-1981 by the District Magistrate, Gujrat on tbe ground that it was an innovation. -The petitioner challenged the validity of the aforesaid order through Writ Petition No. 2737 of 1982, and this Court vide order dated :-«d9-10-1982 set aside the impugned order on the ground that the same was ^passed without application of independent mind and .wholly based on recomendations of the Superintendent of Police, Gujrat. The case was, however, remitted to the District Magistrate for decision of petitioner's application expeditiously and in accordance with law. The case on " remained pending decision for over a year but eventually peti tioner' application was rejected by the District Magistrate on 5-11-1983 for the reasons, that Sunnis were bitterly opposed to the taking out of procession, there was great tension between the parties and apprehension of sectarian riots. Tbe petitioner bejng aggrieved aga'nst the afore-said order again challenged the same befdre this Court through another Writ Petition No. 5028 of 1983, which, was disposed of by this Court on 27-2-1984 when the date for which the licence for taking out 'Zuljinah' procession had already expired. The learned Judge, however, in his order observed : "Tbe matter of grant of licence as and when raised will have to be decided in accordance with the law declared by the Supreme Court in the ease 6f Sarfraz reiterated that a the law stands it does not prohibition, an outright refusal for all times procession, to participate in the religious cereaioayvance. It contemplates placing of control and ad .,. regulatory measures with the object af avoiding breach of and for refusing licence on any particularoccasion or to aayparticular person, there has to be (something else); e. g. tack f bona fide, some ulterfpi motive or purpose manifestly ettablished to account for refusal of a licence. The petitioner on 8-8-1984 repeated his application for the third time fof . the grant of licence to take out 'Zuljinoh' nd 'Alam' processions. His application was sent to police for report. The Superintendent of . Police,, Gujrat opposed petitioner's application on the following grounds :^r- (a) that only a few families of Shia faith are patting up in Kuojab Town, whereas a large number of people or other faith are residing in the locality. (6) Sunais of the locality are bitterly opposed to this procession on the prescribed route. (c) This issue has a long and bitter history as an SHO was murdered on this account. (j) Even this year there is a grave tension between Shias and Sunnis. , d The District Magistrate, relying on the afore-said police report regarding tension prevailing among Sunnis and Shias rejected on 4-9-1984 the application with bis observations to the following effect : "In all fairness it must be remarked that any party making any claim in respect of any religious rite, practice, mode or custom must establish that without strict adherence to the above, he is deprived or prevented from the .fulfilment of religious duties : imposed upon him by his faith, unless and until he performs a particular religious act/rite of bis faith on a specific date and in a specific, locality or on a specific route. In the instant case it is obvious that the petitioner or any other party of Shia faith did not have any licence to take out Zuljlnah procession in Kunjah Town . As such it was incumbent upon the petitioner to establish his case in accordance with the above principle. There is no such evidence on the file. Secondly, it is also incumbent.jpon him to establish that the application made by him is in good faith. Report submitted by 4he S. P. Oujrat clearly speaks of the grave tension prevailing among the Sunni< and Shias. - The grant of licence would be a direct affront to lh< large section of Sunnis community who are inhabiting this town It was necessary for the petitioner to establish that this i» totall unfounded and he was required to lead reliable evidence to prov his case." 'Reported as PLJ 1983 SC 348. v. Zamir Ahmad (P.L.J. 1975 S.C. 50) the case of Government of Pakistan observed : "The general right of the public to assemble and take out pro cessions on public streets or thoroughfares^ is manifestly recognized in this law. In recognition of such a right certain statutory powers have been conferred on the District Super intendent and Assistant District Superintendent .and the Magistrate of the District in the matter of prescribing the route: the timing and imposing regulatory conditions on the conduct of the assembly or the procession The very power to direct an application for a licence is dependent on the jurisdictional fact that "in the judgment of the Magistrate vof the district or of the sub-division of a district" if such an assembly or procession is uncontrolled, it is likely to cause a breach of the peace. So the likelihood of the breach of peace, in the absence of control, provides the jurisdiction to impose controls and conditions and that jurisdictional fact by itself cannot be made the ground for refusing the licence itself. There has to be some thing else e£ lack of bonafide, some ulterior motive or purpose manifesly established to account for refusal of a licence. id this " view of the matter, as held in Mian Mohammad's case the , law does not envisage a total prohibition, an outright refusal for all times to take out the procession, to participate iq a religious ceremony or observance. By requiring the taking out of a licence, the organizers, the managers, the leaders of the group can be identified. They can be placed under control, with regard to the route, timing, halting. places, the accompaniments, and the conduct of the procession itself. Such controls and regulatory conditions must have the sole object of avoiding breach of peace, and without such control or regulatory conditions breach of peace must appear imminent or likely. The plenary power to grant licence where a right is .altogether absent as in the case of import/export of goods is concerned, is a different power in content .and quality than the power to licence processions and assembly which right firids recognition in the- licensing law itself. I his power cannot be used to completely ban or prohibit the assembly or procession. In this case the action of the District Magistrate was clearly without jurisdiction and lacking in .lawful authority. The appeal is accepted, the order of the District Magistrate is set aside". ib the instant case there is nothing on the record to show that the petito tioner in moving application for the third time, for the grant of licence > tr take out procession for participating in a religious ceremony or. obser vance has acted mala fide or for some ulterior motive or for such purpose manifestly established in that behalf. Para . 5 of his application rather indicates that he.has undertaken to abide by the regulatory conditions imposed by the administration on the conduct of the procession. The learned District Magistrate appears to have mis-construed the law laid down by the Supreme Court, in holding that it was for the petitioner to establish through evidence that the application did not suffer lack of bona fide. The other philosophic observation of the learned District Magistrate in die impugned order to v the effect, that if a person claimes a right to perform a religious act on a particular occasion, is required to prove that if pre vented therefrom, it would amount to non»fulfilcaent of religious duty imposed upon him by his faith ; shows his importance about the obser vance of religious ceremonies in particular manner on particular dates and time as article of faith before such person ; and non-performance thereof for reasons beyond his control amounts to bis deprivation of the obser vance of religious duties. It is not denied by the learned Assistant Advocate-General that nobody else except the petitioner had applied for grant of licence o take out 'Zuljinah' procession on the days mentioned in the petition nor it Is his case that the petitioner is 'not proper person ntitled to the grant of licence. The mere fact that the route which the procession lias to folio is predominately occupied by Sunnis pposed to the taking out of pro cession does not empower the District Magistrate to refuse grant of Hceoce to the petitioner. The rounds mentioned in the police report opposing grant of licence to the petitioner were almost identical to those taken into .consideration by the District Magistrate for refusing to grant licence to Sarfraz Hussain Bokhari, the petitioner ib the aforesaid case ut their , Lordships of the Supreme Court set aside the order and held that, the power vested ia the District Magistrate cannot be sed to completely ims or prohibit the assembly or procession. He can impose regulatory condi tions upon the licensees .and. rganizers with regard to the route, timing, halting places and the conduct of the procession itself with the sole object of avoiding breach of peace if deemed imminent or likely The mishap referred by the learned ~ Assistant Advocate-General! regarding the death of a Sikh police officer occurred over a period ofL, three'decades earlier, can hardly be pressed into service for entertajningr reasonable apprehension leading to breach of peace after such a long time, 6. For the foregoing reasons, the impugned order of the learnec District Magistrate, Gujrat rejecting petitioner's pplication for licence to take out Muharram processions is declared to be without lawful authority and of no legal effect. e is under legal obligation to issue licence to the petitioner subject, however, to impose any condition thai may be deemed necessary o avoid breach of peace and to ensure main tenance of law and order on such occasions. 7. In the result, this petition is allowed with no order as to costs. (TQM) Petition allowed.
PLJ 1985 Lahore 25 PLJ 1985 Lahore 25 ( Bahawalpar Beach ) Present: muhammad muni khan,, J KHUSHI MUHAMMAD and OthersPetitioners versus Haji MUHAMMAD ZAKARtARespondent Civil Revision No. 1J8-80/BWP., heard on 9-6-1984. Civil Procedure Code (V of 1908) -- O. XIII, R. 2 & S. 115-^-Pocument Production of at subsequent stag Permission for Recording of reasons for Requirement of - Suit though filed on 29-3-1978, application for permission to profduce Khasra girdawari moved pn 9-4-1980-<-Trial Court, however^ arbitrarily allowing such application without adverting to real ques tion of good cause for not production of document at early stage Held : No good cause for non-production of document at early stage having been shown (even before ffljft Court), impugned order to be set aside. (P. 26]A&S Mr. M. Rakeem, Advocate for Petitioners. Mian Allah Nawaz, Advocate for Respondent. Date of bearing :9-6>i984. judgment On 29-3- 1978 Haji Muhammad Zakaria filed suit for possession by re-emption against Khushi Muhammad and others, the petitioners. The suit was resisted, final arguments were heard but before .the trial Court could announce judgment, the respondent moved application under Orde ( r 13 Rule 2, C. P. C, for permission to produce kh&nt^irdawart rom Kharif 1967 to Rabi 1979. The trial Court allowed application on 26-4-1980 oa the grounds that applicant .bad lready produced copies of mutation to prove his ownership in mauza and that knasra girdawari was ; being sought to be produced in vidence only to relent this defendant's j contention that the title of the plaintiff was not valid and that the document was necessary for the just decision of the rights of the parties, hence ; this revision. 2. Learned counsel for the petitioner contends that the matter was not considered in its true perspective inasmuch as no ood cause was shown for the son-production of document at an early stage. . Conversely the learned counsel for the espondent supported the judgment of the trial Court. ] 3. I have considered the arguments advanced by the learred counsel : for the parties with care. 1 find that the -suit was filed on 29-3-19/8 and application for permission to produce khasra-girdawari at subsequent stage was moved on 9-4-1980 and that the learned trial Court did not consider the real question i.e. showing of good cause for the non-produc tion of, documents. The facts that the khasra-girdawari whs a public document and its authenticity was beyond any doubt or that the document was necessary for the just decision? of the case do not show that there was good cause for non-production thereof. To my mind, the trial Court has without considering the real and most important question i.e. goodcause for non-production of documents at early stage, had arbitrarily allowed application. Even before me the learned counsel has failed to show good cause for the non-production of document at early stage. 4. For what has been stated above, the revision is accepted and the mpugned Order is set aside. TQM) Petition accepted.
PLJ 1985 Lahore 27 PLJ 1985 Lahore 27 Present : gul muhammad khan, J LAHORE DEVELOPMENT AUTHORITY through its Director General, Shahrah-e-Quaid-i-Azam, Lahore Appellant versus SUN BEAM CORPORATION (Regd.). Lahore Respondent
Regular Second Appeal No. 166/1981, decided on 6-5-1984 . (i) Contract Act (IX of 1872)
S, 4ContractConstitution of Communication of offer and 1 acceptan&e Requirement ofHeld : Offer (proposal) and accept ance being necessary ingredients to constitute binding or enforceable contract, no contract to arise without effectual communication of offer Held further : Offer accepted but not communicated also to - constitute no (valid) contract (P. 29]B (i!) Contract Act'(IX of 1872)
S. 4ContractOffer Acceptance of 'Communication ofAppellant signifying its acceptance to offer made by respondents- Such acceptance, though never, revoked, not reaching respondents Held : Mere transmission of acceptance to result in binding contractHeld further : Contract to be complete and binding on respondents.immediately after posting of acceptance. {P30. ]C 27 ILR355; (1892) 2 Ch. 27; AIR 1954 Bora. 491 ; (1945)221 1C 594 ; 1 HLC 381 & (1879) LR 4 Ex. D. 216 ref. (Hi) Admission
Admission adverse to interest of makerEffect ofAppellant ad mittedly transmitting acceptance of offer of respondenteld uch admission of fact adverse to interest of appellant and supported by act of rescision of contract not to be disbelieved or ignored. [P. 29]AMr. Farooq Zaman, Advocate for Appellant. Malik Muhammad Qayyuot, Advocate for Respondent. Date of bearing : 14-4-1984. judgment Civil Revision No. This order shall also dispose of the question involved is identical. 1626-D/1981, as 2. The facts of the case, as they appear from the pleadings of the parties, are that the" respondent-Corporation brought a suit for a declaration that the defendant was bound to communicate and the plaintiff was entitled to receive the., formal acceptance of their bid in respect of Plot No. 44, Industrial Block, Gulbcrg-lll, Lahore. 3. The respondent bad participated ia an open auction ] appellant on 22nd November, 1974 and offered the highest Rs. 1.54.833/- in espect of Plot No. 44 Industrial Block, Lahore . Tbe respondent paid a sum of Rs. 10.000/- in Rs. 40.000/- by cheque, being the I/3rd amount of the total safe price at i tbe spot. 4. Tbe remaining 2/3rd bad to be paid within six weeks of the formal order accepting tbe bid. The possession of the plot was delivered to | the plaintiff at tbe spot. According to tbe respondent, tbe appellant dad not communicate its acceptance of tbe bid to the plaintiff-respondent before cancelling the sale for non-performance by it, though some letters were sent by the respondent asking for it. The case of the appellant was that it sent acceptance of tbe offer but the respondent did not perform its I part of the contract. 5. The facts in tbe other case are also similar, except that a cheque Jin the sum of Rs. 16,000;- to be the part-payment of tbe advance money. I given by tbe respondent, was dishonoured and the petitioners (L.D.A.I is | said to have asked tbe respondent, in the acceptance tetter, to send that ([amount as well in addition to the remaining 2/3rd. 6. The trial Court framed the following Issues : . . (1) Whether tbe suit is not maintainable in the present form ? (2) Whether the plaintiff is a registered firm ? . (3) Whether this.Court has no jurisdiction to try the suit ? plaintiff it entitled to the declaration prayed for ? L«U tbe Issues in favour of the plaintiff and decreed the District Judge, who beard heappeal filed by tbe Id the order of the trial Court mainly,.for ~ llant had failed to prove that it bad to he respondent. Earlier, the ie appellant for ths reason |nt, no postal receipt ied tbe suit of of Rs. 16.000/- < there being no ie appellant was instance of tbe Ae trial Court and the dishonoured id the intimation of , by tbe two Courts 10 transmit acceptance liable to pay for tbe shares even though a letter of I posted to hits was everreceived by him. Thus the inert Ibe acceptance would result in a binding contract against 1 Again admittedly, the acceptance was not. revoked cither. C tbe contract was complete and binding on the respondents after tbe acceptance was posted and tt was not revoked. It is liability of the appellant that .wo aid start only .after tfae.accepUM>cc «mtt within tbe knowledge of the respondent. 13. The above position of law seems to have been well settUsd. In Kimisetti Snbbiab v. Katba Venkatssavmy (27 i. L. R. 3&>) a Division Bench of tbe Madras Hign Court ruled taut in Indian Contract Act, where tbe proposal and acceptance are made by letters,- toe contract is made at tbe time, .when and at tne place wnere, the letter of acceptance » posted though the contract is voidable at tbe instance of tne acceptor bjt com munication of his revocation before the acceptance has come to- the knowledge of the proposer. 14. In Hentborn v/Eraser [(1892) 2 Ch. 27], the Court held that When the parties have in mind to use tbe post as a means df communicating the acceptance of it, the acceptance is complete as soon as it is posted anil that revocation of an offer is of no effect until brought to the miad of: the person to whom tbe offer was made and revocation sent by tne post does not operate from tbe time of posting it. 15. In Bftroda Oil Cakes Traders v. Parsbottam Narayaodas Bageli (AIR 1954 Bom. 491), the Court relied on Section 4-of tne Contract Act to hold that as soon as acceptance is posted or sent by telegram tbe accept ance is complete against tbe proposer and so far as he is concerned, the contract is concluded and the proposer is bound as soon as tbe proposal is accepted subject to tbe right of the acceptor to revoke his acceptance. 16. In Pokhar Mai Ram Nath v. Khaoewal Oil Mills £(1945) 221 I. C. , 594], it war observed by this Court that tbe. moment the letter of accept ance is posted by the addressee in tbe post box at tbe place where he received the letter of offer, tbe contract is concluded and tbe'complete contract has come into existence and tbat there is no question of accept ance subsisting unless the acceptance letter reaches the place, where tbe offer letter was placed. 17. The learned counsel for the petitioner took up the position that his client, in tbat case, would revoke the acceptance. Tbat, 1- am afraid, cannot be done at this stage.v Tbe case of the appellant throughout has been tbat it did accept the offer and communicated it to the respondents. That has already come to the knowledge of the respondent and be has been in fact litigating to avoid the penalty of rescision of tbe contract. According to Section 4, tbe respondents were bound to perform tbe . contract immediately, the offer was posted. Tbe appellant never revoked the offer. The respondents on the other band are also Witling to perform their part of tae contract. .Tbe question involved thus is only of delay. The Supreme Court in Escabboy v, Saboor Ahma£ fPLD 1973 S. C. 39 (43)1 observed tbat "It is well settled principle of law that in contracts relating to immovable property, time is not tbe essence of tbe contract and the claim of the appellant, even if it were accepted that be had given three days notice to the respondent for ibe completion df the contract, failing which it would come to ah end, cannot at all be considered to be reasonable time.'' In view of the above, this appeal has bo merit and is dismissed. How ever, the respondents must perform their part of the contract within six weeks, which is the reasonable time in the 'circumstances of this case. The parties shall bear their own costs. (TQM) Appeal dismissed.
PLJ 1985 Lahore 31 [DB] PLJ 1985 Lahore 31 [DB] [Babawalpor Bench] Present : muhammad munir & khizar hayat, J] ' SHAH MUHAMMAD Petitioner versus ELECTION TRIBUNAL and Others- Respondents Writ Petition No. 78 of 1984/BWP. heard on 10-6-1984. (i) Punjab Local Councils (Election) Roles, 1979- __Rr. 40 (4) & 34 (2) Ballot papers Absence of signatures of Presiding Officer on Effect of Hel4 : Consequences, (of omission/ failure/absence) having clearly been prescribed, absence of signatures on ballot papers to render same invalid.- fP. (II) ProTisional Constitution Order (CMLA's,! of 1981) Art,. 9 read with Purijab Local Councils (Election) Rules, 1979 Rr 40 (4> & 32 (2) Ballot papers Absence of signatures of Presiding Officer on Counting Exclusion from Two unsigned ballot papers (found from ballot box of petitioner) declared invalid and justifiably excluded from count Election Tribunal also finding tendered vote cast , in favour of respondent (No. 2) Held : Total number of votes ftoied in favour of 'petitioner been having reduced and. those of respondent having been increased, Tribunal to have no alternative but to declare respondent as successful. [Pp. 34 & 35JC FLD 1966 SC492 ; PLD ; 1966 (W. P.) Kar. 434 & W. P. 4720/83 (HO Election Matters-
Ballot papers Want of signatures on Effect of Held : Statute if declaring, ballot paper invalid for want of signature, same to be held as such (by courts also). (P. Mian Allah Nawaz, S ardor Mahmood Khan & Mr. Advocates for Petitioner. Afr. M. M. J3Afl«/, Advocate for Respondent No. l!. Mian Muhammad Sated, Advocate Cor Respondent No. 4 Nemo for other Respondents. Date of bearing : 10-6-1984. judgment Mohammad Monir Khan, J. Through this Constitutional Petition Shah Muhammad petitioner wants this Court to declare } Election Tribunal, respondent No. 1, dated 21-2-1984, to be lawful authority and of no legal effect. He further requested only the impugned order be set aside but also he be declared the ful candidate. , 2. The facts leading up to this writ petition, in brief, are that Muhammad petitioner and respondents No. "1 & 2' namely Muhammad Tahir Mahmood nd Faiz Ahmad contested election from'Unit No. 10. Municipal Committee, Cbishtian and polled 485, 484 and 47 vote res pectively. The petitioner was thus declared elected. Muhammad Taoir Mehmood, respondent No. 2 questioned the result of election by meant of election petition before Election Tribunal respondent No. 1. The peti tion was resisted whereon following 5 issues were framed : Issues : 1. Whether two ballot papers were found to be unsigned by the 'Presiding/Assistant Presiding Officer out of the Ballot Box of the Respondent No. 1 ? If so, its effect. 2. Whether the Tendered Ballot Paper/Vote was not cast in favour of the petitioner ? 3. What is the effect of the tendered ballot paper ? OP Parties. 4. Whether the election of respondent No. 1 can be declared as void on the grounds mentioned in the petition-? OPP. 5. Relief The parties adduced their evidence. Issue No. 1 consists of two parts. The first part i.e. "Whether two Ballot papers were found to. be unsigned by the Presiding/Assistant Presiding Officer out of the Ballot Box of the respondent No. 4 ?" relates to facts whereas the other part i.e. "If so, its effect" . is of law. As far. the factual aspect of the issue,- the Election Tribunal on appraisal of the evidence on record reached to the conclusion that the two ballot papers were found to be unsigned by Presiding Officer out of the Ballot Box of Shah Muhammad petitioner. So far as the legal aspect of the issue is concerned, the Election Tribunal declared that th« two unsigned ballot papers to be invalid and that the same could not be counted in favour of Shah Muhammad petitioner. On issues No. 2 Jk 3 the Election Tribunal found that the tendered vbte was cast in favour of Muhammad Tahir Mebmood, respondent No. 2 %nd that the same will be counted in his favour. Coming to issues No. 4 & 5, the Election Tribunal, in view of his findings on issues No. 1 to 3 declared election of Shah Muhammad petitioner/respondent therein, ^te be void because the two unsigned ballot papers having been declared invalid, the total number of votes of Shah Muhammad petitioner were reduced to 483 and with addition of tendered vote in his favour, the total number of polled votes of Muhammad Tahir Mebmood, respondent No. 2 increased to 485. The Election Tribunal, therefore, declared him the successful candidate. This judgment is now before us in Constitutional jurisdiction. 3. Before us, Mian Allah Nawaz, the learned counsel for the peti tioner, who pleaded the cause of the petitioner with appreciable ability, has not seriously questioned the findings of the Election Tribunal oh factual part of issue No. 1 that the two ballot papers were found to be unsigned bv Presiding/Assistant Presiding Officer out of the Ballot Box of Shah Muhammad petitioner and rightly so because the same being a finding of fact based on conscious appreciation of evidence could not have been dis turbed by this Court in exercise of its extraordinary jurisdiction. The learned counsel, however, vehemently challenged the findings of Election Tribunal on legal aspect of this issue. Relying on cases Hajl Muhammad Basque v. Additional Commissioner and Election Triboeal. Hyderabad DiTisiod art others' reported as PLD 19o6 (W. P.) Karachi 434, Akbar All. v, R«2i or-Rehman Khawaja and others' reported as PLD 1966 SC 492, unreported judgment in Writ Petition No. 4720/83/Lab, decided on 22-4-1984 aad the cumulative effect of interpretation of rules 34 (2) (d) and Rule 40 (4) of Election Rules, 1979, argued that the provisions of Rule 40 (4) of Election Rules, 1979 relied on by Election Tribunal are not mandatory in nature and that the omission on the part of Presiding Officer to sign the ballot paper does not vitiate the vote of an innocent elector. According to him it was at best an irregularity, having 'no adverse effect on the validity of the two ballot papers. 1 Conversely, Mr. M. M. Bhatti, the learned' counsel for the respondent supported the judgment of respondent No. 1. 4. We have considered the arguments advanced by the learned counsel for the parties with care. From the state of affairs and the trend of arguments of the parties it is very much obvious that the material and most important question for determination is as to whether the two ballot papers found from the"Ballot Box of Shah Muhammad petitioner which Wefi.'aot bearing signatures of the Presiding Officer at .the time of count, were valid or not. The question of the validity of these two unsigned ballot papers has been fully debated by both the parties. Having given our anxious consideration to the legal point in controversy, we have coma to the conclusion that there is no substance in the conten tions raised by the learned counsel for the petitioner. For the proper appreciation and interpretation of law, the relevant provisions may be re produced advantageously : (6) (d) "the ballot paper shall be signed by the and Rate40 (I)"Immediately? aft« the close of &t Officer shall, in the presence of stfch ef ,^ candidates, election agents and polling ageotswi may be present, proceed with the count of the vot$s. (2) The Presiding Officer shall give such of the contestiaf candidates,, election agents and polling ageats at may « present, reasonable facility of observing thjfrEQuetafldgive them such information with respect thereto as ct& begivea consistent with the orderly conduct of the count and he discharge of his duties in conntction therewith. (3) Ho person Qtber than the Presiding Officer, the Polling Officer, any other person on duty in connection with the poll, the contesting candidates, thtir election agents fad polling agents shall be present at the coun (4) The Presiding Officer shall open -the ballot : contesting candidates in the alphabetic! order of flkeir . names and count the ballot papers contained in tile tKlHot y boxes so optntA, excluding ihtmtiid ballot ptipert.thbi is t& say, the t>atlot pape (a) which do not bear the signature of the Presiding Officer; or (b) on which anything is marked of written by the voter by which he can be identified. S. The plain reading of provisions reproduced above leave 6b room' for doubt that absence of signatures of Presiding Officer on two^ballot papers necessarily rendered the lame invalid whatever tlfe 4e^ajt,.Ior absence of the signatures may be, because tne consequence of j posh bmission/failure/absence has besn clearly prescribed if Election R,«le4 that the Presiding Officer shall occlude such ballot papers ft« fc j|yjpw,^U settled that if the statute/declares a ballot paper to be invalid for w ki|natures then It has to Jbe held as such.. To our mind, the provii0fipf Rule 40 (4) and its clauses (a & b) are of tne nature of categorical dei|oi-tion of an invalid ballot paper. If for die sake of argument it is assumed that the clauses are merely illustrative of the intention of the Legislatwre, r'e, ct remam8 D»t the categories speci&eally mentioned io Rules 4014) of Election Rules will in any case be treated as being necessarily iovalid. or al] these reasons, we are coavinced that the learned Election Tribunal
8 ''Stab declared the two unsigned ballot papers found from the Ballot, x of Shah Muhammad petitioner, to be Invalid and has justifiably these ballot paper from count. In th» view of tfce matter bere was^o Wt&^ r%popd^it'_ Wo. 21 ,' - as the successful candidate). The case law cited by the learned counsel forf ' ^fe the petitioner does not help him, it rather supports the case of respondent (TQM) Petition dismissed.
[Rawalpindi Bench [ Rawalpindi Bench Present : FAZL-E-MAHMOOD, J Jamil mian Petitioner versu Brig. mansoorul haq malik» m«tof General t&t, Islamabad and 2 Others Respondents Writ Petition No. 358 of 19S4, heard oaJ6-10.l984. (i) Provisional Constitution Order (CMLA's 1 of 1981) Art. 9 High Court Jurisdiction of Inter-departmental. affairs- Interference with Held : High Court though possessed of ample powers, under onstitutional provisions to remedy wrong suffered by citizen, Court, however, to prefer to exercise judicial restraint in its discretion and, except for ompelling reasons, not to favour inter ference with ioter-departmeot affairs. [P. 46JX : (II) Ralei of Business- Compliance with Requirement of HeM : Rules of Business betBf based on public policy and having been designed to safeguard Anm jan v. m effectively state interests, all Divisions/Ministries to be duty bound to act in consonance with same. [P. 41$ '-. (111) Rules of Easiness -
R. 14^-Law Division Consultation wiUvRequirement of~ Held : Law, Rules and Regulations'of obligatory character being meant to be obeyed and honoured by th«robservance and not through breaches, any departure from R. 14 of Rules of Business to lead to anomakrus results proving injuries to smooth transaction of business of Federal Government by its various Divis : 'ns and Ministries-^Helf fnrjher : Letter and spirit of law, when observed, . to have wholesome effect of avoidance of frivolous litigatioo and waste of public time and expense while non-observance of such rules to give rise to unnecessary litigation and to be bound to impede .speedy dispensation of justice. [P. 47]C Khawaja Akhtar AH, Advocate for Petitioner, Mr, Munir, A^ Sheikh, Deputy Attorney- General for Respondent Date of hearing: 16-10.1984 order This constitutional petition has been filed by an Assistant Engineer in the T & T 'Department whose promotion to Basic Scale number seventeen as ordered by the Secretary Establishment, Government Of Pakistan, has led to a discordant note from. ^ Director General , Pakistan Telegraph and Telephone Department. The petitioner seeks a direction from this Court in the nature of writ of mandamus for the implementation of the orders of this former. 2. On this case coming up for (imine hearing a learned Judge bad cal led for comments which have been filed. The letter forwarding these com ments ated 16-9-1984, however, proceeds on a misconception as if these comments were being submitted on behalf of all the respondents. These are comments rom respondent No. 1 only and to be construed accord ingly .3. There are three respondents to the writ petition, namely (/) Brig, Mansoor ul Haq Malik, irector General T & T, (if) Federation of Pakistan through Secretary Establishment, Government of Pakistan and (Hi) Secretary Communication, Government f Pakistan. On inquiry the learned Deputy Attorney General clarified that he is presently appearing under instructions from respondent No. 1 only.
4. After hearing the learned counsel for the petitioner and the learned Deputy Attorney General, at the preliminary stage, I feel that the functionaries Of the Federal Government in different Departments are at loggerhead. The petitioner's learned counsel is, however, keen for immediate redreis of his grievances. 5. .The petitioner has invoked the jurisdiction of this Court under Article 9 of the Provisional Constitution Order, 1981, which reads at 7. From a ^lais .reading of the above"p^>v|:ions, it is .crystal; clear that it is a self-cJtfained code. For the purposes of the present case, it should suffice to observe that the policy of law, inter alia, appears to be to achieve harmonious functioning of various Divisions and Ministries of the Government and further to ensure that they seek aad act on competent expert advice in respect of (I) all legal questions arising out of any case; (/i) on the interpretatioa of any law; and (Hi) at ibe earliest possible stage whenever any civil or criminal proceedings are instituted against the Federal Government. These Rules of Business are thus based on public policy and designed to safeguard effectively the State interests I To act in consonance with these rules is a clear duty cast on ail .the|' Divisions/Ministries of the Federal Government. This can be clearly spelt out from the'as^ of the wortf '.'shall" in the opening part of Role 14 of the Rales of Business. Reference may, in particular, be made to subclauses (a), (6) and (/ i to sub-rule (t) of rule 14. as they are relevant for the purposes of this case. I am, therefore, constrained to observe that Law, Rules and Regulations of obligatory character are meant to be obeyei and honoured by their observance and not through breaches. An; departure from the aforesaid provisions is bdund to lead to anomalom results and prove injurious to smooth transaction of the business of the Federal Govern meat by its various ivisions and Ministries. The lette and spirit of the law. when observed, will also have the wholesome effect pf avoidance pf frivolous litigation and waste of public ttms and expense Non-observance of these rules, on the other band, is fraught with th< danger of giving rise ( to unnecessary litigation and bound to impede tb speedy dispensatiPn pf juUics. It' is against public policy and public interest to burden the Courts with matters which ought to be settlec t the departmental level.^ 8. 1 would like to refer to a decision of the Supreme: Court of Pakistan in the case of Tariq Transport Company, Lahore v. the Sargodba-' Bhera os ervice, Sargodha (P.L.D 1958 S C. 43/j. In somewhat similar circumstances, the learned 'Supreme Court strongly deprecated the trend of Departments f the same Government in carrying the internal disputes for resolutiSa te'ftigb Courts in writ jurisdiction." At page 496 of the report, Corneiitis 3. bserved "Surely there are sufficient wise heads and sober minds within the branch of the administration which ideals with control, of public transport to e able to devise, consistently with the statutory instrument, a modus vivendi whereby these two autho rities may be enable'd to function together armoniously, and with the degree of efficiency necessary to ensure the public gopd. It is rather unfortunate,that despite the above-quoted dictum of the' Supreme Court in Tarlq Transport Company's case little heed has beeo paid to it by the statutory ' functionaries who are obliged to follow it by vijtue of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973, read with the Provisional Constitution Order, 49» 1. 9, In the above background and circumstances,. I have called upon the learned Deputy Attorney General Mr. Munir A. Sheikh to intervene and bring the matters to the notice of the relevant quarters in cluding the Law Division so that this contentious questioa instead of being voiced in the Courts 4s settled harmoniously in accordance with the require ments of the Rules of Busir 10. The learned Deouly Attorney General next submits that the Se retary, Establishment Division! i$ presently out of the country and is likely to return after a few weeks, fie further submits that the petitioner need not entertain any apprehension on account of this exercise which it going to be undertaken by h m as he would sot be frustrated on the btttit of a plea raised that in the meantime somebody else has been promoted against the vacancies which are in dispute in the present case. . 11. In the above circumstances, the ease is adjourned for six week as prayed. The learned Deputy Attorney General shall on the next, date of hearing apprise the Court about the progress of this matter. (TQM) Order accordingly.
PLJ 1985 Lahore 48 [DB[ PLJ 1985 Lahore 48 [DB[ Present: saad saood ian & abaid ullab KttAN, JJ Sheikk MUHAMMAD HUSSAIN A Co. l^iS and 9 Others"-Appellants versus CITIBANK H. A., Alfalah Building , Lahore Respondent Regular First,Appeal No. 198 of 1981, deckled ott^0-i984 (I) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)
S. 7 (2) read with Civil Procedure Code (V of 1908)O. XXXVII, FUr. 2 £ 3Special Court Procedure before Lea.ve to defend Application forGrant or refusal of Discretion Exercise of mU: Question whether leave should be withheld, allowed or grant ed conditionally being one falling within discretionary jurisdiction of Court such discretion vesting in court to be exercised judicially and in manner not shutting out plausible defence of defendant. [P> 5l|M PLD; 1963 SC t63 & 1984 SCMR 568 rel. at) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)
S. 7 (2) read with Civil Procedure Code (V of 15W8)O. XXXVU,Rr. 2 it 3Special Court Procedure beforeLeave to defend -^ Decision onBanks though ordinarily not advancing large loans unless security offered be more than adequate to cover debt, legisla ture choosing to extend .summary rocedure set down in Q. XXXVII of Civil Procedure Code to suits brought by banks on mortgages as well -HeM : Quality of defence and not extent of security o b« governing factor in considering questioa of grant of leave to defend snj (111) Banking Companies (Recovery of Loam) Ordaanoce (XIX of 1979)-
S. 7 (2) read with Civil Procedure Code {¥ of t908jiO, XXXVII, Rr. 2 & 3Leave to appear and defend Conditional grant of Non-compliance of condition Preliminary decree passed on ! Challenge toInaccuracies in statement of accountPlea ofDetail ed statement of acc®B«t submitted by bankHeld : In absence of any specific instances of inaccuracies, plea of accounts of bank" being unreliable or not truly repyesentrng extent of indebtedness not to be taken seriduslyRate'of interest also just in accordance with agree- - ment between parties 5- Held : Appellant not to be permitted to repudiate such rate. [P. 54JC (it) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979) -S. 7 (2) read with Civil Procedure Code (V of 1908) --O. XXXVII, Rr. 2 & 3Leave to defend suit Application for Conditional acceptance ofFailure to comply with conditionEffect ofAppel lant failing to comply with condition upon which leave granted Held : Bank to become entitled to obtain decree in accordance with claim made by it in its plaint. [P. 57JF (?) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)
S. 7 (2) read with Civil Procedure, Code (V of 1908)O. XXXVII, Rr.2&3Leave to defend suitConditional grant ofFailure to comply with condition. Effect of Special Judge acting properly in attaching condition of pro-deposit of amount claimed by bank before granting leave to appellantsHeld : In case of non-compli ance with such condition, preliminary decree in favour of bank to jb rightly passed by Special Judge, fP. 57jG (vi) Civil Procedure Code (V of 1908)
O. XXXIV, R. 1Mortgage-^-Sait relatingForm ofObjection» as toObjection with regard to form of two suits brought oy two banks not taken, by any of appellants in application for seeking leave to appear and defend suitEven grounds of appeal containing no such objectionSuits also brought by two banks after mutual con sultation and with consent of each otherHeld : Objection with regard to form of suits not to be upheld. [P. 56]£
(v$i) Guarantee-
^-Company--Difie|ors ofGuarantee byRevocation ofEffect of
Appellant"(No.-^) and other directors of company, both jointly and severally, guaranteeing repayment of debt owing from appel-- lant No. 1 to unlimited extent by offering themselves as guarantors in their personal capacity as distinguished from their status as directorsSubsequently, appellant (No. 6) ceasing .to be director of company but giving no notice to bank with regard to revocation of guarantee before institution of suitHeld : appellant .not to escape his liability for amount claimed in suit.
[Pp, 55]£>
Civil Procedure Code
(V of 1908)
O. XXXVII, Rr. 2 &;3See : Banking Companies (Recovery of oans) Ordinance (XIX of 1979)
S. 7 (z).
[Pp. 51,53, 54&57K
B.C&F
Satd Saood Jan. J.-n-
JUDGMENT
This judgment will dispo&e^of two regular first appeals, registered as NJfffto and 199.
b
ga trantors^ fo- rtw amjunt owing from appellant No 1 ; in a4aiuo;s. at>^>ctlant$ No. 2» 3 and 4 had created equitable mortga^-; in respiv?, uf tUcir own immovable properties by depositing the liiU-je.-'J-. It avy be mesiioned that appellaats No. 2,3, 4, 5 and 9 were also D<.\x"«..r> u 4. The two suits were filed oncSer the provisions of the Banking Companies iRecoverj/. of Loaas)- Ordiiiance,, 1979, in the Special Court constituted under tt^at- Ordinance. Section 7(2) of the Ordinance states: . "Io the exerciu' of u; oiv,» juriidiction, the Special Court shall ' in all suits before it, mviujiag suits based on mortgages of all " JtinJs on Statement- <. f 'acwwiu for recovery of money paid- to, orloJbe order of. ca.-. defcaoaat, foiiow me sumraury prccedurc-providcd for in O: j«v JvXXVii in the Fust Schedule to tne Cods , of Civil "Procedure, iyO^ vAct V of i9i;i.}' . Accordingly, as provided by rule 2 <»> of Order XXXVIII <»f the Code of Civil Procedure the learned Special Judge 'sent summonses to the 1 appel lants in form No. 4 of appendix B of the Ode. The summonses required the appellants to obtain leave from the Court within ten days from the service thereof to appear and defend the suit. In accordance with this requirement appellants No. !, 2, 3, 4, 5, A and 1 in ihe'-Mrit filed by the The principles upon which the provisions of Order XXXVII of the Code of Civil Procedure should be applied are not dis similar to the principles which govern the exercise of the summary power of giving liberty to sign final judgment in a suit filed by a specially endorsed writ of summons under Order XIV of the Rules of the Supreme Court in England. One of such principles laid down by ib/e Court of Appeal in the case of Kodak v. Alpha Film Corporation was that at the stage when leave to, defend is sought "the Judge is not to try the action ; be Is to see that there is a bonafide allegation of triable issue, which is not illusory ; he need not be satisfied that the defence will succeed; it is enough that such a platfsible defence is verified by affidavit"." It) Abdul K«rim. daffaraai v. United Bank Limited (1984 SCMR 568) the Supjeme Court reiterated the abovs view and further observed : "No hard and fast rule can be laid down for determining the. question as to how the discretion vesting in the Court to subject the order for grant of leave to defend to conditions, ought to be exercised as this question depends on tne facts and circumstances of each case. It would be improper to lay down a rule of thumb for the exercise of power In matters of discretion vesting in a Court, when even the statute has left it unfettered... fto%ever, in order to correctly -exercise,the discretion vesting tn a Court
under the provisions in question, it is necessary to examine the scope and object underlying such provisions providing for special procedure of this kind, in view of the legislative history of these provisions,, the overall object envisaged by the Legisla ture was to provide for expedi : Tus disposal of litigation Involv ing commercial transactions of a particular nature by a summary procedure so that the defendant Joe,s : i have the means open to exploitation in the ordiiiuiy procedure fof trial of suits to prolong the litigation and prevent the plaintiff fr6m obtaining an early decision by raising, untenable and frivolous defences, It is in this context that-the discretion to impose con ditions is to be exercised. If, therefore, the Court is of the opinion that the defendant is trying to prolong the litigation and impeding a speedy trial, although on the .allegations made in the application a triable issue has been raised then the Court would be justified to impose conditions. . But it will be .improper exercise^ of discretion to impose conditions simply because, at the. leave'granting stage the defendant is unable to adduce his . evidence on the plea raised in bis defence. The proper stage for substantiating bis defence would be at the trial subsequently", 7. On behalf of the appellants it was contended that in a case where the loan was adequately secured by mortgage of immovable property the imposition of condition while granting leave to the defendant to appear and defend the suit was uncalled for. In support of this conten tion reliance was placed upon a decision of this Court reported a S. M. Aytib and Company v. National Bank of Pakistan (1983 C.L.C. 2828). la this case while seeking leave the defendant alleged that he had paid back part of the loan and that the loan was fully secured bv a mortgage. The learned trial Judge granted leave to the defendant subject to the condition that he should deposit In Court the remaining part of the loan hich he had not yet paid; The defen dant challenged the legality of the condition ia writ jurisdiction. A learned Single Judge dismissed the pplication on tlfe ground that the imposition of condition was a matter within the discretion of the trial Judge. The defendant filed an Intra-Court Appeal hich came up before a Division Bench. The Division Bench set r aside the condition, holding that in a case .where the loan was fully secured by mortgage, tc.. toe imposition of condition tq deposit the suit amount would render leave illusory. It will be noticed that in this case the Division Bench has made the xistence of security as the, main consideration for deciding whether a condition should,or should not be attached to the leave On tne otter hand in the above mentioned two decisions of tne Supreme Court the rule laid down is that it is the quality of the defence put up by the defen dant which is to.be regarded as (be determining factorin this regard. We need hardly say that we are bound by the decisions of the Supreme Court. We ay respectfully add that the view taken by the Supreme Court is in accord with the object and scheme of the~ Ordinance. The legislaforialj draftsman ust ave'been aware that the Banks ordinarily'do not advance large loans unless the security offered is more than adequate to cover the debt, yet he has hosen to extend the summary procedure set down in B Order XXXVII to suits brought by banks on mortgages as well. It is an indication of his intention hat it is the quality of the defence and not the extent of the security, which should be, the governing factor in-consider ing the question of leave. ccordingly, we shall, therefore, examine the quality of defence in examining whether the learned Special Judge acted properly in imposing the impugned ondrtion. 8. As already mentioned, of the appellants only appellants No. 1, 2, 3, 4, 5. 6 and 8 applied for leave to appear and. defend the suits. The grounds taken by appellants No. 1, 2, 3, 4 and 5 were identical. Appel lants No. 6 and 8 raised some additional pleas as well. It is to be noticed that none of these appellants denied the execution of loan agreements, or obtaining of loan facilities and other financial accommodations from the banks, by appellant No. I. similarly they did not dispute hypothecation of its properties by appellant No. 1 or creation of equitable mortgages in favour of the banks. Appellants No. 2, 3 and 4 did not disavow the creation of equitable mortgages in respct of their own properties by way of security for the amounts owing from appellant. No. 1. Further, appel lants No. 2, 3, 4 and 5 did not challenge the allegations of the banks that they were guarantors of the amounts outstanding against appellant No 1. They however alleged: that the amounts claimed in the suits had not been correctly worked out &n 8 was also similar He too claim ed that he had resigned from directorship of appellant No. 1 and- had "sold all his shares and other holdings in the Company I e. M<'$ H. 3b, Muhammad Hussain and Company Limited and remained no more a Director whereupon his signatures on all documents whether as a guaran tor or otherwise were withdrawn artd cancelled and was absolved of. al! responsibilities and liabilities In the explained circumstaaces he neither remained a dsbtor nor guarantor for any loan or other credits of any kind dvanced to M's H. Sh. Muhammad Hussain and Company Limited", It was further alleged that on 31-7-79 appellant Na. 1 had a credit balance with,the two banks. As such appellants No. 6. and 8j at least, who liad ceased to be the directors of the Company before tfcat dte stood discharged from all the future liabilities incurred subsequently by appellant No. 1, 10. According to the banks the position of appellants No. 6 and 8 is that of guarantors. In support of their claim against these two appellants they have relied upon a document which was allegedly executed jointly by the latter in their favour on 2-8-75. A photo stat copy of this document is on the record. A pertisal of this document shows tnat it was executed io favour of the Grindtays Bank atone ; .for thaj reason the Citibank caoot take advantage of it in order to make appellants No 6 and 8 also liable for the amount owing from appellant So. 1. It may be mentioned that there is a photo stat copy of another document also which has been executed jointly in favour of the two banks bat it bears the date 13-2-71. In their plaints neither of the two banks had referred to this document. Apparently they are not relying upon it to enfofce their claim against appellants No. 6 and 8.. We shall not, therefore, take any notice of it. if. A perusal of the aforementioned document of 2-8-75 shows :-- u> it was executed by appellant No 6 and 8 together with iota other appellan (i/) the executants, both jointly and severally, gu«raot«ed repayment . of the debt oir.g from appellant No. 1 to an iiaRmited extent; (in) the executants were offering themselves in goaT|CBio|s in their personal Capacity as distinguishedfroai their status as directors of appellant No, 1 ; and 0>) the guarantee was continu Inr view of the above wsjjios it is idle for appftllaot No. 6 and 8 to con tend that upon their leasing;.to- be director Of appeHants No\ 1 thel guarantee Which they had given to the Grindlays Bank came 10 an end bij that as appf llant No, 1 had a»crfdit balance with the bawiks on 31-7-79I they could not'be. held respoMiMs for any financial liability incurred b> appellant No. I subsequent to that date, there is also nothing ob tb'd Record to show that at any time beforeibe institution of the suit the said appellants had Riven notice to the banks with regard to the revocation of] the gaarantee. Thus prtmajaeie they cannot escape their liability for ^feie amount claimed in the suit by the Grindlays Bank. However, s0jf«r «i the claim of the Citibank is concerned^^ they canapt be held liable as guarantors for the debt owing from: appellant No. I under the; deed of Z-A 1 , 12 The next contention on behalf of the appellants relates to the form ef the two suits. Appellant No; 1 had asked the two banks for oyerdmft/toan and guarantee racilitie| to t%e extent of Rs.4^»oy,OQO; Tntf bciaks granted the said facjlJttes-ijy splitting tbe atftouat 'asked for between themselves. r Thus; the Grindiay Bank agreed to provide facilities to the extent of Rs, 96.00 030 >vha«tthe Cjtibaak aadertook to do so to- the extent of Rs. 7S,08,OJ9. By way of security appellant'No. 1 hypotbecatedMts raoveable pY6p«rties jointly m favour of tfie two banks. Subifqucwlx, tile linjfts/were>aissd and the bypothscation agreement?; Wfre extsiided Arart fr^m that the lianVcvycable' proptjaies offered as, security by ?4«jtable m "tgmge by appetlaMS No. i, 2, 3,4 to tfte two ba«ks vvera the same M^vert&eie«, neither of the vwo banks impleaded the other bank as a party to us suu. I .anted Counsel f«r the appellants contendsd -th.it- the said omiwion Violated the ptovisions "of Rule I of Order XXXIV of the Code of CitfilProeedure and as such the two suits wereMab'e to be dismissed on that account; -In support of'-'his contention he refeYrfcd to Sanitibfia Debi v Dhira Sundari Debi (A. 1. R 1919 P. C. ^Sub)eci;^;the ; p^visic^svor tiiis 'Coce^ all pmcni huvjog an ^ w^cst eri^r jn >hs rorM.^i3s-^«!ityarm n>c fight ofrcderttpi t«'..-n saa.f^s .w,«sea .34 partjes .tal any stut rriatiaj; to the motif. Thcre ti jn ;:,piar.u.t'on appended to tfiii rule but thai is not relevant tor thi purpose ''' cor.iidenng the objection raised on behalf of ifie" appeltaniv. In Sanitibal»Debi v Dhara Sundari Debi, ikid. t consequent upon some litiga^uu, suf»ittbd,a Debi had agreed to pay Rs. fcO.OOO to her two «epmo»tD&r j in considerate n for their giving up al! claims to the estate of her failx.: 1 :.«;. the \ - tnent of the said amount she executed Subsequently i>r.e of »he 14, Finally, the learned counsel for the appellants contended that tbe learned Special Judge bad acted illegally in passing decrees upon documents and-statements of accounts before these had been proved or exhibited and that the learned Judge was not right in assuming that after leave had been refused he had no further responsibility in the matter and that the decrees had to follow as a matter of course. Learned counsel further stated that even though the Bankers Books Evidence Act did permit a banker to file a certified copy of a statement of accounts as proof thereof it did not attach any presumption of correctness to such a statement. We find little merit in this contention. When the appellants failed to comply with the condition upon which leave was granted to them they bad to be treated as if their prayer for leave bad been refused. Now rule 2, sub-rule (2), of Order XXXVII of the Code of Civil Procedure states that when a defendant fails to obtain leave the allegations in the plaint shall be deemed to have been admitted and the plaintiff shall be entitled to a decree. Accordingly the learned Special Judge was not required to call upon the banks to formally prove their documents and statements of accounts or show their genuineness. On the other hand the banks became entitled to obtain decrees in accordance with the claims made by them in their plaints. 15. In the light of the above discussion we find that tbe learned Special Judge acted properly in attaching the condition of pre-deposit of the amount clai ed by the Grindlays Bank before granting leave to appellants No. 1, 2, 3, 4, 5, 6 and 8. As the condition was not complied with tbe isarned Special Judge rightly passed a preliminary decree in favour of the Grindlays Bank. It may be mentioned that appellant No. 7 had not even cared to apply for leave. We would accordingly dismiss the appeal in R. F. A. No, 199 of 1980 with costs. 18. As regards the suit filed by the Citibank, for the same reasons, we upho d the preliminary decree in so far as appellants No. 1,2, 3, 4, 5, 7, 9 and 10 are concerned and set aside the same in respect of appellants No. 6 and 8. It may be mentioned that appellants No. 7, 9 and 10 had not made any application for seeking leave. Appellants No. 6 and 8 should be given unconditional leave to appear and defend the suit. The Citibank shall have its costs from appellants No. 1,2, 3, 4, 5, 7, 9 and 10. So far as appellants No. 6 and 8 are concerned the costs shall abide by the final event. (TQM) Order accordingly.
PLJ 1985 Lahore 57 PLJ 1985 Lahore 57 Present: Gut zarin kiani, J TALIB HUSSAINPetitioner versus Mst. BASHIRAN BIBI and 2 OthersRespondents Writ Petition No. 3794/84, decided on 19-9-1984. (I) Guardians & Wardj Act (VIII of 1890)- Ss. 17 St 25MinorCustody ofHeld : Father, though natural guardian, custody of minors in case of male'up to age of ? yean an4 in rase of female until she attains age of puberty to vest in mother- Held further : Welfare of minors alone, however, to be guiding factor in deciding matter of custody by court. [P. 60]4 (ii) Guardians & Wards Act (VIII of 1890)- S. 25M ; nor--Custody of Mother Right of No infirmity alleged in regard to character of motherHeld : Unless there be other weighty considerations against her affecting welfare of minor .materially, mother not to be deprived of her right offriza-nat merely because of her having no means of her own to sustain herself and bring up, minor children in befitting mannerHeld further : It being duty of father to provide maintenance and other necessities of life to minors, father not to take advantage of such weakness on other side for purposes of gaining advantage in matter of guardianship of minors. [Pp. 60 & 6l]B (iii) Guardian & Wards Act (VIII.of 1890)- S. 25Minor daughterCustody ofHeld : In case of minor daughters, love, affection and training well needed to .prepare them to shoulder their future responsibility to 'be provided only .by mother and father to be no good substitute for it. [P. 6l]C (iv) Guardians & Wards Act (VIII of 1890)
S. 25MotherRight of hizanat ofMinorWelfare ofHeld : Welfare of minor daughter (ordinarily) to be in remaining with her mother till she crosses age of discretion in which case she returns to her fatherHeld farther : Rule being not absolute or inflexible one, mother suffering from any serious moral infirmity reacting upon proper upbringing of minor to lose her right of hizanat. [P. 6i]Z> (v) Provisional Constitution Order. (CMLA's 1 of 1981)
Art. 9 read with Guardians & Wards Act (VIII of 1890) - S. 25-Custody of minorsApplication for Order on Challenge to - Courts below not acting without jurisdiction or without lawful authority in handing over custody of minors of tender age to their motherOrders passed suffering from no error apparent on face of record or non-reading or misreading of evidenceRight of second appeal being not available in case, decision of Additional District Judge attaining finality-Held : No cass for interference in consti tutional jurisdiction of High Court made out in circumstances. [P. 61 &62\E (vi) Guardians & Wards Act (VIII of 1890)
S. 25 See : Provisional Constitution Order (CMLA's 1 of 1981)-Art. 9. [P.61]£, Ch. Sana Ullah, Advocate for Petitioner. Date of hearing 19-9-1984. order Present constitutional petition under Article 9 of the Provisional Constitution Order 1981 assails order dated 12-7-84 of the learnedbefore the court below did not succeed in his appeal which was dismissed as stated above on 12-7 84. Both the courts below, therefore, have found in favour of mother and the custody hits been ordered/restored to her. These two judgments concurrently holding that the welfare of the minors lay in their living with their mother have been assailed in constitutional jurisdiction with a prayer to declare them to have been passed without jurisdiction and lawful authority. I have heard learned counsel for the petitioner and perused the record. Learned counsel for the petitioner contended that the minors were staying with their father and were being properly looked after by him and the paternal grand-mother of the minors. They were hale and hearty. The eldest daughter had already been put in School. They are being provided with every facility consistent with the means of the peti tioner. Minors have become accustomed with their present stay with the petitioner and to separate, them at and handover their custody to the mother at this stage would adversely affect their emotional set up. The petitioner is a well-to-do person compared to the mother of the minors who is not possessed'of sufficient means to provide for the minor daugh ters. To support his contentions, learned counsel has placed reliance on RsJiim Ullafa Cnaudbry v. Mrs. Sayeda Helali Begum «nd others (1974 SCMR 305), Marina Pushpng v. Derick Noel Pushing (PLJ 1974 Lahore 385). It has been vehemently contended that the courts below have not adverted to the welfare of the minors in the context of evidence brought on record by the parties and the guardianship petition has been decided merely on the rule of presumption relating to Hizanat as laid down in Islamic Law. Learned counsel pointed out that the paramount considera tion in such cases is the welfare of the, minors alone and Rules of Muslim Law in regard to Hizanat are subordinate to this important consideration of welfare of the minors It is admitted that the parties were married on 18-8-1975. It is also admitted that Afar. Bashiran has been divorced and that divorce has been: made effective under the provisions of Muslim Family Law Ordinance 1961. Bate of birth of minors has neither been given in the petition under Section 25 nor is available from the record. However in para. 2 of the petition seeking custody of minors the ages of minors were given as 4 years and two .years respectively. This fact has not "been contested by Talib Hussain. Father, though a natural guardian, yet the custody of the minors in case of male up to the age of 7 and in case of a. female until she attains the age of puberty vests with mother. This is quite in accord with the provisions, of Muslim Law. However, the question of custody, on a combined reading of Sections 17 and 25 of the Guardian and Wards Act i $19 turns on the question of the welfare of the minors which alone is [ the guiding factor in deciding the matter of custody by the Court. Under Section 17 (2) of the Guardians and Wards Act, the court in considering as to what will be the welfare of the minor shall pay due regard to the age, sex and religion of the minor, the character and capacity of the pro posed guardian and his nearness of kin to the minor, the wishes if any of deceased parent and any existing or previous relations of the proposed guardian with the minor or his property. In the case of a minor who has reached an age where he can formulate an opinion for preference, the gjcourt may also consider his choice. In the case under consideration no (infirmity has been alleged in regard to the character of the respondent (TQM) Petition dismissed.
PLJ 1985 Lahore 62 PLJ 1985 Lahore 62 [ Rawalpindi Bench] Present : akhtar hassan, J Mst. AMERA SAEEDPetitioner versus Syed HASSAN HAMID and 2 OthersRespondents Writ Petition No. 552/1984, decided on 24-11-1984. (i) Guardians & Wards Act (VIII of 1890)- -S- 12 read with Family Courts Act (W. P. Act XXXV of 19S4)- S. 14MinorInterim custody ofOrder of Appeal against Competency ofOrder of interim custody essentially passed by Family Court between contending spouses and relating to matter included in schedule to Family Courts Act-r-Held i- Qrder squarely falling within jurisdiction of Family Court, S. 14 of Act (XXXV of 1964) to ispo facto apply. [Pp. 63 &,M]A (ii) Writ Jurisdiction-
Interlocutory orderChallenge tor Writ-"Competency ofHeld : Only final orders to be assailed in constitutional Jurisdiction of High CourtOrder of interlocutory nature passed in case Held : Such order not to be easily assailed in writ despite its having been passed without jurisdiction. {P. 64]B & C PLD 1973 Lab. 495 & PLD 1963 Lah. 461 rel. (iii) Family Courts Act (W. P. Act XXXV of 1964)-
S. 14See : Guardians & Wards Act (VIH of 1890) S. 12. [Pp. 63 & 64]^ Mirza Anwar Baig, Advocate for Petitioner. Mr. M.Bilal, Advocate for {Respondent. Date of hearing : 24-11-1984, order This writ petition impugns au order dated 12-11-1984 of the learned Addl. District Judge, Rawalpindi , passed in appeal from that of the Juuge, Family Court in a guardianship case. 2. The contest is between the separated spouses in regard to the custody of their minor off-springs. The learned Guardian judge vide his order dated 30-7-1984 on an application under section 12 of the Guardians & Wards Act allowed the respondent-father to see the children in the bouse of the petitioner-mother for one hour each Friday. The respondent aggrieved of the order preferred an appeal before the learned Addl. District Judge who changed the order to allow, him to take away the children fpr one day a week. 3. Aggrieved by the said order, the petitioner-mother has preferred the present writ petition. Mirza Anwar Baig for her, strenuously con tended that the ,order passed by the trial Court was not appealable and that, therefore, the learned Addl. District Judge had no jurisdiction to entertain the appeal or change it. He placed reliance upon Adnan Afzal v Col. (Retd ). Sher Afzal and 2 others (PLJ 1982 Lahore 475) urging that when such an order was passed without jurisdiction, the writ lay even if it were of interlocutory nature. He further referred to Muhammad Deen Malik and another v. Hnd Additional District Judge, Karachi and 2 others (1982 SCMR 1223) submitting that section 47 of the Guardians and Wards Act as amended was applicable and that it did not make the order under section 12 of the said Act amenable to appeal. He still further canvassed that the order being neither a "decision" nor a "decree" could not be assailed in appeal under section 14 of the Famijy Courts Act. Lastly he argued that the point precisely before the learned Addl. District Judge was to settle a neutral place where the respondent:father may have been allowed to see the children but he instead increased the duration of the period in complete disregard of the apprehensions of the petitioner that the respondent having dual nationality was most likely to take them away out of Pakistan. 4. The crucial point seems to be whether an order under section 12 of the Guardians and Wards Act was appealable or not. M. Bilal, for the respondent, placed reliance upon Muhammad Deen Malik and another v. Hnd Additional District Judge, Karachi and 2 others (PLJ 1982 Karachi 418), Arif Hussain v. Maria Elice Hussain and another [i983 CLC 353 (Karachi)j and Mst. Zaibnn Nisa v. Mohammad Mozammil (PLD 1972 Karachi 410) I which consistently it was held that such an order was appealable under section 14 of the Family Courts Act as it was a ''decision". Unfortunately, no contrary judgment has been cited to show if an order under section 12 ibid was not appealable. Much stress was laid upon 1982 SCMR 1221 to point out that this question was still being considered by the Supreme Court on the plane that section 27 of the Guardians and Wards Act as lately amended would exclude the application of section 14 tbidwnd hence an order for interim custody of minors passed under section 12 of the ct being not enumerated among those recounted in section 47, was not appealable. The cited cas was not decided one as the Supreme Court has been pleased only to admit the relevant petition to determine the effect of amendment introduced in section 47 of the Guardians and Wards Act as it was not considered in the earlier one reported in Sekhawat All and another v. Mst, Sbui Kbelay (PLJ 1981 S.C. 816) where it was clearly ruled that an order passed by a Judge, Family Court, was appealable under section 14 of the Family Courts Act. The Karachi view lends considerable support to the contention raised by Mr. Bilal especially in the absence of any view by this Court to the contrary.1 The impugned order was essentially passed by a Family Court between! the contending spouses and relates to 9 matter included in the Schedule) ho the Family Courts Act. Even subject-matter-wise it squarely fell within line jurisdiction of the sai<i Court and hence section 14 ibid will ipso facto japply the children for a day in an interim arrangement The reason is that may be plea of the respondent is that only final orders can 5. Besides ali else, the order was interlocutory nature which may not I be easily assailed in a writ, despite having been passed without jurisdiction. 'Mst. Kaniz Fatima and 3 otters v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others (PLD 1973 Lab. 495) referring to Ramzan v. Rehabilitation Commissioner (Legal) Sargodha and another (PLD 1963 Lahore 461) has categorically laid down that a writ would not lie to impugn or impeach an order of interim nature. There is no gainsaying the fact that allowing the respondent-father to take week during the pendency of the case was only and hence could not be impugned in the writ, in final analysis this order is set aside and the (entirely disallowed. It is a cardinal principle Cjbe assailed in Constitutional jurisdiction. No authority to the contrary, (especially to the view expressed by this very Court in D.B., namely. PLD 1973 Lahore 495, was cited at the Bar and, therefore, this would also clinch the matter against the petitioner. 6. Dismissed in liminc. Petition dismissed.
PLJ 1985 Lahore 64 [OB] PLJ 1985 Lahore 64 [ OB ] [ Rawalpindi Bench] f resent: akhtar hassan & qurban sadiq ikram, JJ GENERAL MANAGER, Hotel Intercontinental, Rawalpindi Petitioner versus MUHAMMAD HANIF and 2 OthersRespondents Writ Petition No. 136/1983, decided on 19-11-1984 Industrial A Commercial Employment (Standing Orders) Ordinance (W. P. Ord. VI of 1968)-
S. O. 15 (3) («)Misconduct Definition of Absence withoutleave for more than ten daysEffect ofHeld : Words "more than ten days" being clear in meaning and admitting of no ambiguity, charge sheet to be issued on twelvth day and not on eleventh day Held further: Use of word "more" to indicate intention of legislature that absence without leave, in order to be punishable as miscon duct, should be of at least eleven days (and not just ten days). [P. 6S]4 Mr, Wasim Sajjad, Adovcate for Petitioner, Date of hearing : 19.11-1984. order This Constitutional petition is directed against the order dated 25-10-82, passed by the Punjab Labour Appellate Tribunal by which the appeal of the present petitioner against the judgment of Punjab Labour Court No. 6, Rawalpindi dated 27-2-82 was dismissed, The facts of this case are that ohammad Hanif respondent was employed as Cafeteria Supervisor in Hotel Inter-Continental, Rawalpindi. He was found absent from duty without eave for more than ten days and as such, given a charge sheet dated 17-6-81 which according to the learned counsel for the petitioner, was eceived by him on 20-6-81. (It was, however, stated by the learned counsel during arguments that for purposes of arguments he would consider hat the said charge sheet was received by Muhammad Hanif on 17-6-81). After service of charge sheet, an inquiry was held. A final show cause otice was given to him whereafter Muhammad Hanif was dismissed from service on 18-7-81. After legal formalities, Muhammad Hanif filed an pplication under section 2S-A, Industrial Relations Ordinance before Punjab Labour Court No. 6, Rawalpindi , which was accepted on 27-2-82. The espondent Muhammad Hanif was ordered to be reinstated in service. The present petitioner went up in appeal against the reinstatement of ohammad Hanif respondent but the same was dismissed on 25-10-82; hence this petition. 2. At the very outset, the learned counsel for the petitioner stated that Muhammad Hanif respondent has already been reinstated and s working in Hotel Inter-Continental Rawalpindi. However, he contended that the petitioner would like to have an interpretation of he words "more than ten days" as they appear in Order 15 of the West Pahistan (Standing Orders) Ordinance, 1968. The relevant rovision of clause (e) sub-order (3) of Order 15 of the Standing Orders is reproduced below : "(e) habitual absence without more than ten days ;" leave or absence without leave for On facts it will be noted that the case of the petitioner is that the respon dent Muhammad Hanif was absent for more than ten days w. e. f. 7-6-81. The charge sheet was issued to him on 17-6-81. It was received by the employee on 17-6-81 as conceded by the learned counsel though according to the record it was received by him on 20-6-81. A simple calculation would indicate that the charge sheet was issued on the 11th day of the alleged absence. This would mean that the charge sheet pertains to only his absence from 7-6-81 to 16-6-81 i.e. ten days in all. A bare reading of the relevant provision which defines misconduct would indicate that the intention of 'law was to make absence without leave for more than ten days punishable, and not absence of just ten days. The words "more than ten days" mean exceeding ten days. These words are clear in meaning and'admit of no ambiguity. The words "more than ten days" would not mean absence of just ten days but would mean eleven days. The charge sheet could therefore, have been issued on the twelveth day and not on the eleventh day. The use of the word "more" indicates the intention of Legislature that the absence without leave, in order to be punishable as misconduct, should be of at least eleven days and not just ten days. 4. In view of the above, we find that the orders of Labour Court No. 6 dated 27-2-82 and that of the Tribunal dated 25-10-82 were perfectly legal and with jurisdiction. This petition has, therefore, no merit and is accordingly dismissed in limine. (TQM) Petition dismissed,
PLJ 1985 Lahore 66 PLJ 1985 Lahore 66 Present : mahboob ahmad, J ALLIED BANK OF PAKISTAN LIMITED, 1.1-Chundrigar Road, KarachiPlaintiff versus Messrs KOHINOOR COTTON MILLS LIMITED, Lahore and 3 OthersDefendants Civil Original No. 126/83, heard on 26-9-1984. (i) Bankers Books Evidence Act (XVIII of 1891) S. 4Statement of accountsEntries inCorrectness ofState-ments of account duly certified under Act filed in respect of two loans Held : Entries of amounts claimed as due in such statement to be lawfully received as evidence of existence and correctness of such entriesNo rebuttal or even denial regarding correctness of such entries madeHeld : Amounts claimed by plaintiff to stand estab lished. [P. 68]^ (H) Civil Procedure G»de (V of 1908)- O. XXXVII, R 3Leave to appear and defendJustification for None of grounds of application for leave to defend giving rise to any triable issueHeld : There being no justification to grant leave to appear and defend suit, application to merit dismissal. [P. 68JJ? (ill) Civil Procedure Code (V of 1908)- O. XXXVII, R. 3Leave to appear and defendApplication for Dismissal ofEffect of-Application for leave to defend suit dis missed by High CourtHeld,: Contents of plaint to be deemed as proved. [P. t>8]C Mr. Shahid Humid, Advocate for Plaintiff. Mr. Abdul Qhani Chohan, Advocate for Defendants. Date of hearing : 26-9-1984 judgment Allied Bank'Limited has instituted this suit against the defendants for recovery of a sum of Rs. 11,58,033.90. Defendant No. 1 is the principal borrower to whom two loans are stated to have been given one on 5-10-1980 for rupees 6 lakhs and the other on 4 11-1980 and 25-11-1980 for a sum of Rs 4 lakhs. Defendant No. 1 while obtaining the loans executed a demand promissory note dated 5-10-1980 for a sum of Rs. 6 lakhs and alongwith also executed a letter of hypothecation, letter of waiver, interest and disbursement, letter of continuity and the general form of security for advances and loans. Similarly defendant No. 1 on 4-11-1980 executed demand promissory note for a sum of Rs. 4 lakhs alongwith same set of documents enumerated above. As per demand promissory note interest at the rate of 14% per annum with quarterly rests is chargeable. \ : . 2. It has also been asserted in the plaint that defendants Nos. 2, 3 and 4 executed letters\ of guarantees dated 1-10-1980 for re-payment of Rs. 10 lakhs by accepting joint and several liabilities alongwith defendant No. 1. The re-payment having not been made the amount due accuoiulated to Rs. 11,58.033.90 as on 31-5-1983 and therefore the plaintiff bank was obliged to file the suit claiming recovery of the aforesaid amount from the defendants together with interest at the rate of 14% per annum from the date of institution of the suit. Costs of suit have also been prayed for. 3. Alongwitb the suit the plaintiff has filed the statements of accounts uly certified under the Bankers Books Evidence Act showing the sums of Rs. 6,45,711.90 and 5,12,322.00 as outsanding against the defendants. The supporting documents as mentioned above have also been filed along- with the plaint. 4. The defendants on receipt of summons in form 4 of appendix B' appplied for leave to defend the suit on 21-7-1983 tnrough C.M, No. 416/C of 1983. This application has been resisted by the plain iff bank. 5. In the application for leave to defend filed by the defendants two grounds have been taken, one that comoany having gone into voluntary liquidation, the present proceedings cannot continue by virtue of Section 171 of Companies Act and the second that nothing having been said n the plaint as to whether the loan is secured or .not, shows that the loan is secured and therefore, leave to defend the suit should e granted. 6. The learned counsel for the defendants has today submitted that in pursuance of negotiations between defendant No. 1 and Pakistan Banking Council, the Pakistan Banking Council had advised defendant No. 1 to withdraw voluntary winding up, deliver 2,62,946 shares of Kohi Noor Cotton Mills imited together with transfer deeds to Habib Bank Limited to secure liability of National Bank, Allied Bank the plaintiff and Habib .Bank and that in ursuance of the said arrangement the defendant has made an application for withdrawing winding up petition. He also sub mitted that the defendants have filed an application today (C.M. No. 26 B of 1984) that the learned counsel for the plaintiff be asked to enquire from the plaintiff Bank as to whether in the attendant circumstances that Pakistan Banking Council has arrived at an amicable settlement with de fendant No. 1 the plaintiff will continue with the present suit. 7. As regards the second ground, the learned counsel for the defendants submitted that since the plaintiff asked the defendant to ecure loan through a notice and there being no averment in the plaint that the loan has not been secured, it should be assumed that the loan tands secured and thus leave to defend should be granted. 8. On the contrary, the learned counsel for the plaintiff sumbmitted that he had already obtained instructions from the plaintiff-Bank three days go nd in the interval today as well in the light of the application of the defendants, he had asked the plaintiff Bank as to whether it wants to proceed with he case or not. He submitted that he has been given specific instructions to continue with the suit as negotiations between the defendant No. 1 nd Pakistan Banking Council neither legally nor on factual plane bind the plaintiff not to pursue its independent case for recovery of loans dvanced by it to the defendants. The learned counsel for the plaintiff further contended that there being no winding up petition pending as admittedly an application for withdrawal of the same has been made and otherwise also the said application for winding up having been instituted subsequent to the institution of the present suit and no stay of proceedings having been allowed by the High Court, the suit can proceed, especially when the proceedings of winding up are voluntary and obviously intended to deflect the recovery proceedings. 10. As regards the second ground of the defendants, the learned counsel for the plaintiff submitted that the loan has not been secured and mere issuing of a notice calling upon the defendants to secure the loan can in no manner be construed that the loan has been secured. The learned counsel referring to letter dated 10-8-182. from the defendant No. 1 to the plaintiff submitted that in reply to the said notice, the defendant No. 1 has tated that it can only create a second registered mortgage, to which the plaintiff did not agree. 11. The learned counsel for the plaintiff Bank in the last contended that the execution of documents having not been denied shall be deemed to ave been admitted and the consideration also having not been denied, there is no ground whatsoever available to the defendants to seek leave to defend the suit. The learned counsel for the plaintiff continuing his arguments submitted that no plausible defence has been disclosed in the affidavit of the defendants, which may give rise to any triable issue and consequently the application of the defendant is liable to be dis missed. 12. Having given consideration to the controversy involved, I find that the contentions raised on behalf of the plaintiff have force. It has been ightly pointed out that the receipt of loan amounts has been admitted and that the execution of documents has also not been denied. The tatements of accounts duly certified under the Bankers Books Evidence Act, 1891, having been filed in respect of the two loans, the entries of the mounts claimed therein as due can lawfully be received as evidence of the existence of those entries and of correctness thereof as provided by ection f the Act aforementioned and thus the amounts claimed by the plaintiff from the defendant shall stand established more so because there is no rebuttal r even denial regarding the correctness of the said statements. 13. The main ground rather the only ground which could legitimately fall for consderation for determining as to whether in this case leave to appear and defend the suit be granted or not, viz., the pendency of voluntary winding up of the defendent-company also haying been stated to be o onger available in view of the admitted position that defendant No. 1 has already applied for withdrawal of the said winding up petition none of the rounds of the application for leave to defend are such which could give rise to any triable issue. The obvious that follows is that there is no ustification to grant to defendants leave to appear and defenc the suit. Resultantly the application for leave to defend the suit is dismissed. 14. The application for leave to defend having been dismissed the, contents of the plaint shall be deemed as proved and as such the suit of jc the laintiff is decreed with cost in the sum of Rs. 11,53,033.90 recoverable! from the defendants jointly and severally. The plaintiff shall also be entitled to future interest at the rate of 14% per annum with quarterly rests from the date of institution of the suit till realization of the amount. (T$M) Suit decreed,
PU 1985 Lahore 77 LRawalpindi Bench] PU 1985 Lahore 77 LRawalpindi Bench] Present : akhta& hassan, J KARAM HUSSAIN Petitioner versus ABDUL KARIM and 2 Others Respondents Writ Petition No. 102 of 1983, decided on 27-11-1984. (i) Civil Procedure Code (V of 1908) -- O. VII, R. 17 & S. 115 read with Provisional Constitution Order (CMLA's 1 of 1981) Art. 9 Pleadings Amendmsnts in -Order of Challenge to Application for seeking amendment in plaint dismissed by Additional District Judge in revision Held : Order of allowing or refusing amendment in pleadings being essentially of interlocutory nature, writ to be incompetent without exhausting ordinary remedy of appeal (against final order yet to be passed). [P. 78] 4 & B 1981 Law Notes ( Lahore ) 456 ref. NLR 1982 Civil 329 held not applicable. Provisional Constitution Order (CMLA's 1 of 1981) n Art. 9-See : Civil Procedure Code (V of 1908)~O. VII, R. 11 & S. 115. [P. n Muhammad Aslam, Advocate for Petitioner. Mr. Muhammad Yasin Bhatti, Advocate for Respondent. Date of hearing : 27-11-1984. judgment This Writ Petition assails an order dated 29-3-1983 of the learned Addl. District Judge, Rawalpindi, whereby he accspted a Revision peti-tion and dismissed the petitioner's application for amendment of his suit for pre-emption. 2. The petitioner sought to pre-empt the suit land on the ground that he was 'Sharik-i-Khata', Malik Rakba' and 'Banna Sftarik'. Ome five months after concluding his evidence on issues, ha noted the mistake in the plaint and sought its amendment to add a qualification of eing 'Malik Deh\ His ptea was that the words "Malik Rakba" were in fact misdescribed for "Malik Deh" . The trial Court allowed the mendment but in the Revision the learned Addl. District Judge held otherwise. He took the view that 'Malik Rakba' being no ualification for pre-emption, could not be allowed to be changed into ' Malik 0eh' as it will amount to setting up a new case after seeing hat the petitioner will not succeed on the qualifications already taken up. Accordingly, he dismissed the application. 3. In support of the present writ, considerable arguments have been raised. It was urged that the discretion exercised by the trial Court ould not have been interfered with in Revision ; that allowing amendment was not a 'case decided' so as to have called for the nvocation of section 115, .P.C ; that acceptance of costs had dis-entitled the respondent fro m agitating against the amendment-; that the ddition of a qualification for pre-emption was not setting up a new case, and that the writ in such an event was most appropriate remedy. Copious references were made in support of each of these points. 4. In reply, however, at the outset an objection was taken that the order being of interlocutory nature, no writ would lie. Muhammad Hnssain v. District Judge, Sheikhupuia etc. (1981 Law Notes (Lab.) 456] was relied upon. It can hardly be denied that the order of allowing or refus ing amendment of pleadings is essentially of interlocutory nature. The suit is still said to be pending and evidently it could be agitated in any possible appeal. This ordinary remedy has to be exhausted. Reliance was placed on Munir Ahmad v, Addl, District Judge, Muzaffarabad (NLR 182 Civil 329), wherein an order passed in Revision petition by the learned District Judge was set aside by the High Court in a constitutional writ as it was found to be against law. A perusal of this authority shows that no objection as to the maintainability of writ was raised on the ground that the order of the trial Court or for that matter of the Revi-ional Court was interlocutory as could not be called in question through the writ petition. Accordingly, this authority will not help the petitioner as against the (clear rule laid down in Muhammad Hussain's case The chance to assail Ithe order in any appeal still remains to be availed and hence the writ was (incompetent. It is dismissed leaving the parties to bear their own costs. Petition dismissed.
PLJ 1985 Lahore 78 [DB] [Rawalpindi Bench] PLJ 1985 Lahore 78 [DB] [Rawalpindi Bench] Present: saad saood jan & sardar muhammad dogar, JJ Malik MUHAMMAD NAWAZPetitioner versus MUHAMMAD SHUJAHAT RAJA and AnotherRespondents Writ petition No. 516 of 19s3, decided on 18-9-1984. (i) Capital Territory Union Councils (Election) Rules, 1979
R. 61 read with Provisional Constitution Order (CMLA's 1 of 1981)Art. 9 Election petition Trial ofElection Authority though not competent o dispose of petition at time of filing of same, subsequent amendment in rule made two days after filing of petition investing Authority with owers of acting as Tribunal Held : Election Authority being competent to dispose of petition (on relevant date), order passed not to be without urisdiction. [P. B4\B (ii) Capital Territory Locfti;Goveromeot Ordinance (XXXIX of 1979)
S. 22(e)- Person in Service of PakistanDisqualification to contest election-.Reservist of armyApplicability of bar toRespondent, after retirement from army, remaining on list of reservistsCertificates given by authorities clearly mentioning respondent not to be in service of Pakistan armySubsequently, respondent joining legal profession and admittedly practising as Advocate at time of holding of electionsHeld : Respondent not to be treated to be in service of Pakistan for his merely being reservist. [P. 86]2> (iii) Provisional Constitution Order (CMLA's 1 of 1981)- -- Art. 9 Election Tribunal -Order of Challenge to Order of Tribunal neither suffering from any illegality, nor passed without jurisdiction Held : No case for interference byway of exercise of constitutional jurisdiction made out in circumstances. [P. 86]£ & F (ir) Pakistan Army Reserves Rules, 1953 -- Rr. 42, 44 & 45 -Reservists Status of Provisions regarding Construction of Held : Provisions regarding reservists being subject to Army Act not to be taken to mean more than fact of their being subject to special discipline of Army Held further- Such provisions of administrative nature to be read in liberal and not in narrow and pedantic manner. [P. 85]C (t) Tribunal Orders of Tribunal not shown to have acted wholly without jurisdiction Held : Action passed in accordance with law by such Tribunal not to be declared as nullity. [P. 84J/4 PLJ 1975 SC 368 ref. (vi) Provisional Constitution Order (CMLA's 1 of 1981) -- Art. 9 See : Capital Territory Union Councils (Election) Rules, 1979 R. 61. [P. 84]B Maulvi Sirajul Haq, Advocate for Petitioner. Mr. Asif F. Vardag and Syed Zafar All Shah, Advocates, for Respondent. Dates of hearing : 25, 26 and 27-6-1984. judgment Sardar Muhammad Dogar, J The petitioner contested election from Ward No. 11 of Union Council Kirpa, Tehsil and District Islamabad against the respondent, held on 28-9-1983. The respondent by securing 3bO votes aga nst 312 votes by the petitioner, won the election and so was declared elected on 6-10-1983. The petitioner after having lost the election, filed election petition, inter alia on the ground that the respondent was disqualified to contest election or be a member of the Union Council, by virtue of clause (ehof Section 22 of the Capital Territory Local Govern ment Ordinance, 1979 (hereinafter to be called Local Government Ordi nance, 1979), 'as being a reservist' of the Pakistan Army, he was 'in the service of Pakistan'. The Deputy Cooimissioner/Election Authority, Islamabad exercising the powers of Election Tribunal, dismissed the elec tion petition vide order dated 15-11-1983. The petitioner has filed constitu tional petition, seeking setting aside of the order of the Election Tribunal. 2. The relevant facts are that the respondent was retired from the Pakistan Army on 5-10-1980, and 'termination of service' certificate was issued to im. His name was, however, placed on the list of the reservists from the tame date, at his own request. He has to remain on the list as a reservist of he Pakistan Army (ill 21-9-1994. After retirement he hat entered the legal profession as an advocate and took part in the Local Bodies Elections held on 8-9-1983. Till the announcement of results of 5. Learned counsel for the petitioner advanced 2-fold arguments for setting aside the order of the Election ribunal. Firstly, be contended that the Deputy Commissioner/Election Authority, Islamabad did not exercise the powers of Election Tribunal on 25-10-1983 when the election petition was presented to him. Learned counsel in this regard referred to sub-rules (1) and (2) of rule 61 of the Capital Territory Union Councils (Election) Rules, 1979 (hereinafter to be called Union Councils (Election) Rules, 1979). Sub-rules (1) and (2) read as under : "(1)On receipt of an election petition, the Election Authority shall return it to the petitioner if the Election Authority finds that the petition has not been presented within the prescribed time or is not accompanied by a receipt of the requisite security deposit." "(2)If an election petition is not returned under sub-rule (1), the Election Authority shall refer it for trial to a Tribunal, appointed under rule 62", Learned counsel conceded that sub-rule (2) had been amended by notification No SRO 1002 (I)/83. In that it was added that if the election petition is not referred under sub-rule (1) the Election Authority may; (a) itself proceed to dispose of the petition after giving the parties due opportunity of being heard. This notification was published in the gazette of Pakistan Extraordinary on 27-10-1983. It was argued by learned counsel that although the impugned order was passed on a date after the amendment but learned Deputy Commis sioner/Election Authority had not been conferred the powers to act as Tribunal, when he had passed order on stay application by assuming jurisdiction on 25-10-1983, i.e. the day, the petition was presented. It was contended that since on 25-10-83 learned Deputy Commissioner/Election Authority was not invested with powers to act as Election Tribunal, the conferment of powers vide notification dated 27-10-1983 did not improve the position and illegal assumption of jurisdiction to act as Election Tribunal without lawful authority inspite of amendment dated 27-10-1983 and the orders passed subsequently including the impugned order were illegal and without lawful authority. Learned counsel in this regard cited Yusaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) to contend that the subsequent orders passed on the basis of a void order have no force of law and whole series of such orders together with the superstructure of the rights and obligations built upon that must fall, as such orders have a little legal foundation on the strength of void orders, which being void have no legal foundations. The second contention raised by him pertained to the alleged disquali fication of the respondent for contesting election to Union Council or holding theelected office. It was argued by him that being reservist belong ing to 'other ranks' of the Army the respondent was subject to the Army Act, 1911, as provided in sub-rule (2) of rule 42 of the Pakistan Army Reserves Rules, 1953 (hereinafter to be called. Reserves Rules, 1953) and so he was in service of Pakistan , and as such was disqualified ,in terms of c4a»se/e) Section 22 of Local Government Ordinance, 1979, which pejc- ' tains to disqualification of candidates and members, Sub-rule (2) of rule 42 of Reserves Rules, 1953 reads as under : "Members of the Regular Reserve of other Ranks shall remain subject to the Army Act, 1911 (VIII of 1911), or to any enact ment which replaces that Act and the Rules and Regulations there under until their services ate terminated." Clause (e) of section 22 of Capital Territory Local Government Ordinance, 1979, reads as under : "Is in the service of Pakistan or or a public statutory corporation, a Union Council or other local authority".Learned counsel in order to further press his point referred to clause (e) of section 21 of the Punjab Local Government Ordinance, 1979, and con tended that the words 'salaried official' have not been enacted in the Capital Territory Local Government Ordinance, 1979, and so a person even without being a salaried official can be deemed to be in service of Pakistan for the purposes of Capital Territory Local Government Ordiuance, 1979. 6. Learned counsel for the respondent contended that admittedly the impugned order was passed on a date when the Deputy Commissioner/ Election Authority had been invested with the powers to hear and decide the election petition by way of amendment in the rules which were noti fied in the official gazette on 27-10-83 i e. 2 days after the petition was filed. It was contended by him that the Deputy Commissioner/Etection Authority had not assumed the jurisdiction on 25-10-1983. In fact, arguments on the stay application submitted by the petitioner along with the election petition were heard by the Deputy Commissioner/Election Authori ty, at the request of the petitioner. Learned counsel argued that even if for the sake of argument it is granted that the Deputy Commissioner/ Election Authority had assumed jurisdiction on 25-10-i983, the undisputable fact is that the petitioner had not objected to the assumption of jurisdiction, rather order dated 25 10-1983 was passed at his request on his stay application. Order passed including the impugned order and the proceedings conducted thereafter were after conferment of powers on 27-10-1983 to act as Tribunal. The learned counsel contended that in view of this the petitioner cannot be allowed to turn back and contend that the Tribunal had acted without jurisdiction. In this connection he referred to Ghulam Mobi-nd Din v. Chief Settlement Commissioner (Pakis tan), Lahore etc. (PLD 1964 SC 829) wherein it has been observed that if a person submits to the jurisdiction of a Tribunal and participates in the proceedings without raising objection, be cannot be allowed later on, to turn back and object to the orders passed by the Tribanal. With regard to the alleged disqualification of the respondent to con test election or to hold the elected office in the Local Council of Capital Territory, learned counsel contended that the resoondent was not in service of Pakistan as he had retired from the Army. He referred to the three certificates produced by the respondent before the Tribunal and argued that it is clearly stated therein that his services have been terminated from 5-10-1980, that he is no longer in service of Pakistan, that the period of his reserve liability will not be counted as service in Pakistan Army and that he is presently not in Pakistan Army service though according to the Pakistan Army Rules, 1974 he is liable to join Pakistan Army service be cannot be allowed to turn back and say that the Election Authority should not have assumed jurisdiction. 9. The other thing, we would like to note is, that apart from the
fact that the impugned order or for that matter, any subsequent order to the order dated 25-lO-19»3, cannot be termed to have been ased on the order dated 25-10-1983. The impugned order can clearly be bifurcated to have been passed with jurisdiction by the ribunal romthe one passed on 25-10-83 on the stay application. The latter related to an interim matter, while the former pertains to the ain etition. IWe are of the view that unless a Tribunal is shown to have acted wholly without jurisdiction, its all actions passed in accordance with law annot Jbe declared as a nullity. Reference in this connection may usefully be made to the observations by Hon'ble Hamoodur Rehman, C. J. as e then was) in Brig (Rtd.) F. B. Ali's case (PLJ 1975 Supreme Court 368). It was observed at page 389 that: 'There can be no doubt that if a Tribunal or Court acts wholly without jurisdiction, its action would be a nullity but it does not necessarily follow from this that even what it does with jurisdiction will also be rendered void, because, the Tribunal or Court has at the same time done something which was without jurisdiction without any prejudice to anyone then what is done with jurisdiction cannot be invalidated or declared null and void, at least, in the writ jurisdiction as held in the case of Khizar Hayat". 10. We have examined the order dated 25-10-1983. There is no M ote or observation by the Election Authority that the petition was in order insofar as it related to be within time and of the petitioner having deposited the security. There is neither any rule nor any provision in the Act rescribing time limit for the Election Authority to either return the petition or forward it to the Tribunal after examining the aspect of the petition being in rder. The proceedings noted other than the interim order passed on the stay application and its adjournment to 1-11-1983, are 'the petition has been resented today'. This is in fact opening to the order passed on the stay application. By the time, the petition had come up before the Election Authority n the next date of hearing i.e. 1-11-1983, the Election Authority had been invested with the powers of acting as a Tribunal, We, therefore, wonder, f it can be argued with ny amount of certainty that the Election Authority had assumed jurisdic tion to adjudicate upon the petijion? Be that as t may, even apart from this, we have not been able to find any weight in the contention of counsel for the petition otherwise also, that the Tribunal had passed the order without jurisdiction and so was liable to be set aside on that ground alone, 11. We have examined the contentions of learned counsel for the petitioner about disability of the respondent to contest election or o hold elected office. There is no denying the fact that the respondent was a reservist in the Pakistan Army. His name had been placed on the list at he time of his retirement on 5-10-1980. However, the other point, needs adjudication is, whether, for being subject to Army Act, the respon dent was n the service of Pakistan Army and so in the service of Pakistan, as provided in clause (e) of section 22 of Capital Territory Local Governs noted earlier, the authorities which had given certificates to the respondent, have also clearly mentioned therein that the respondent was not in service of Pakistan Army, For the foregoing reasons, we hold that the respondent cannot be treated to be in service of Pakistan Army, for merely being a reservist. The judgment of the Tribunal does not suffer from any illegality nor has in Muhammad 60) at page 62, It has been observed 1974 Supreme Court been passed without jurisdiction. Hussain Munir v. Sikandar (PLJ that: "It is ell-settled that where a Court or a tribunal has jurisdiction and it determines thai uestion, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law", I No case for interference by way of exercise of constitutional jurisdicfjtion has been made out. There is no merit in this petition. The same (stands dismissed, with no order as to costs. (TQM) Petition dismissed.
PLJ 1985 Lahore 86 PLJ 1985 Lahore 86 [Rawalpindi Bench] Present : lehrasap khan, J FAQIR HUSSAIN-Petitioner versus GHULAM ABBAS and 2 OthersRespondents Writ Petition No. 1150 of 1980, heard on 23-1-1983. (i) Cantonments Rent Restriction Act (XI of 1963)-
S. 17(2)(/)EvictionDefaultGround ofDefault in regard to pavment of rent for months of February and March, 1974 already committed by tenant at time of institution of ejectment petition- Held : Mere fact of landlord having sometimes accepted payment of rent after intervals of two three months not to condone default. [P. 89]/4 PLJ 1980 SC 431 ; 1980 SCMR 834 & PLD 1981 Kar. 164 ref. (ii) Cantonments Rent Restriction Act (XI of 1963) Ss. 17 (2) (/) & 24EvictionDefaultGround of Default in regard to payment of two months' rent already committed by tenant at time of institution of ejectment petition Appellate authority, however, not treating such default as so serious as to be visited with ejectment orderHeld : View taken by appellate authority to be legally erroneous. [P. S9]B (iii) Cantonments Rent Restriction Act {XI of 1963)
S. 17 (2) (//) (3)EvictionSublettingGround of-Tenant while leaving for England handing over possession of shop to his brother Such brother carrying on business in shop without consent and permission of landlordHeld : Subletting of tenanted premises to make tenant liable to eviction. [P. 90JC (iv) Constitution of Pakistan , 1973
Art. 199 read with Cantonments Rent Restriction Act (XI of 1963) Ss. 17 & 24Superior courtsLaw laid down byDisregard ot Writ jurisdictionExercise of District Judge clearly disregarding provisions of Act and also acting in utter disregard of law laid down by superior courts-Held : Case to be fit one for invocation of extra ordinary writ jurisdiction of High Court. [P. 9i]0 PLJ 1981 SC 660 rel. (v) Cantonments Rent Restriction Act (XI of 1963)
Ss 17 & 24 See : Constitution of Pakistan , 1973 Art. 199. [P. 91]Z> Kh. Muhammad Farooq, Advocate for Petitioner. Mr. Saleem Sehgal, Advocate for Respondents Nos. 1 & 2. Nemo for Respondent No. 3. Dates of hearing : 16 & 23-1-1983. judgment This Constitutional Petition calls in question the order dated 19-12-79 passed by the learned Additional District Judge, Rawalpindi, viz. respon dent No. 3, whereby he accepted the appeal of respondents No. 1 & 2 against the petitioner impugning the order dated 5-7-1977 of ejectment passed by the learned Rent Controller against respondents No. 1 & 2. 2. The dispute relates to shop No. 47/3, Bank Road , Rawalpindi Cantt. belonging to the petitioner which was rented by Ghulam Abbas respondent o. 1. On 1-6-1974, the petitioner filed ejectment petition before the learned Rent Controller Rawalpindi Cantonment seeking the eviction of the espondents from the tenanted shop on the grounds of default in payment of rent and sub-letting of the premises by respondent No. 1 to espondent No. 2 without the consent of the landlord. The ejectment application was resisted by the respondents and on the pleadings of the parties, the learned Controller framed the following issues : (/) Whether the ? petitioner has no cause of action ; (ii) Whether the petition is mis-conceived and mala fide 1 (Hi) Whether the respondents are rent defaulters ? (/v) Whether respondent No. 1 has sub-let the suit property to respondent No. 2? 3. The petitioner-landlord in support of his cantentions examined PW-2 Altaf Hussain, while he himself came into the witness boxasPW-1. The etitioner himself deposed that since February, 1974, rent was not paid to him by respondent No. 1 and that Ghulam Abbas respondent No. ho had in fact rented the shop from the petitioner had himself left for England in 1974 and since then he had not come back. He instead of restoring he possession of the shop to the petitioner-landlord passed on its possession to his brother respondent No. 2 who previously used to run a separate shop in front of the shop in question. Altaf Hussain PW-2 also supported the testimony of the petitioner to this effect that respondent No. I had gone to England and while leaving for England, he entrusted the possession of the shop to his brother Ghulam Mustafa respondent No. 2. 4. The respondents examined PW-1 Mushtaq Ahmad son of Abdul Razzak, PW-2 Mushtaq Ahmad son of Mohammad Sadiq and espondent No. 2 came into the witness box as PW- . These R. Ws, stated that since 1965-66, Ghulam Mustafa, respondent No. 2 was in ossession of the shop in question alongwith Ghulam Abbas respondent No. 1 and that on earlier occasions prior to 1974, Ghulam bbas once or twice went to England and in his absence, business was run by Ghulam Mustafa alone in the tenanted premises without any bjection by the petitioner. Ghulam Mustafa further disclosed that rent was paid upto date to the petitioner who used to receive rent ometimes fter two months, sometimes after four months. Ghulam Mustafa, however, admitted that-the tenancy was not settled with him by the etitioner but the same was settled with Ghuiam Abbas respondent No. 1. It is also not denied that .since 1974, Ghulam Abbas espondent No. 1 had not come back from England . 5. On the basis of parties evidence and after hearing them, learned
Rent Controller found all the issues against the respondents. He held that respondents were defaulters in payment of rent and that respondent No. 1 had sub-let the shop to respondent No. 2 before the left for England . Consequently, vide his order dated 5-7-1977, he directed the tf ejectment of the respondents from the shop. 6. The respondents preferred appeal and the learned Addi tional District Judge Rawalpindi vide his impugned judgment found that hough technically the respondents were defaulters in payment of rent, but their default was not wilful and consequently they deserved exercise of iscretion in their favour. As regards the allegation of sub- 5 letting of the shop, he found that even on earlier occasions, when respon dent o. 1 used to go to England for intervals of a year or so, respon dent No. 2 carried on the business in that shop within the knowledge f 0 the petitioner, therefore, it was a case of wajver and the petitioner was estopped from raising the plea of sub-letting of shop by respondent o. 1 to respondent No. 2. In view of these conclusions, he accepted the appeal and dismissed the ejectment petition with costs throughout. 7. So far as the default in payment of rent by the tenants is concern ed, a unanimous finding has been recorded by the Rent Controller as well as y the appellate authority that the respondents were defaulters in pay ent of rent. The appellate authority, however, has further found that on previous ccasion, the landlord received rent after intervals of two and three months without any objection, therefore, discretion could be exercised n favour of the tenants. Under the provisions of section 17 (2) (i) of the Cantonment Rent Restriction Act 1963, a tenant who has not paid or tendered ent to the landlord within 15 days of the expiry of the -x time fixed in the agreement of tenancy for payment of rent, or in the - .~ absence of such agreement, within 60 days followmg the period for which ffttf reaf is cfue, is fi'abfe to be evicted. In the present case, there is ,o agreement of tenancy and, therefore, the liability of the tenant to eject ment for non-payment of rent in such case takes place if the tenant fails to pay the ent within 60 days following the period for which rent is due,According to the parties evidence on the record, it transpires that since February 1974, the respondents failed to pay rent to the petitioner. The jectment petition was filed on 1-6-J974. This shows that at the time of institution of the ejectment petition, the respondents had 'already committed default in regard to payment of rent for the months of February and March, 1974. The mere fact that on earlier occasions, sometimes the landlord acoepted the payment of rent after intervals of 2/3 months cannot condone the default in payment of rent which amounts as such in accordance with statutory provisions of section 17 ibid. In His Holiness Dr. Syedna Mdbummad Burhanuddin Saheb v. M/s Abdul Rebman Abdul Ghani (PLD 19bl arachi 164), it was held that the periodical acceptance of accumu lated rent without any objection by the appellant by itself did not amount to alteration of erms and conditions of" written tenancy agreement, if any, or the provisions of law for payment and tender of rent by the tenants as laid down in the Rent estriction Act. The parties cannot contract them selves out of the provisions of law nor can any party plead a practice contrary to law. The enant required by law to pay rent 'by a specified time cannot allege contract or practice to get out of such obligation. The mere fact that the andlord accepted delayed payment of rent in the past cannot be said to have given rise to a practice for tenant to make delayed payment in derogation of he provisions of the Rent Restriction Act. In Abdul Hashid v. Saleh Muhammad (PLJ 1980 SC 431), it has been ruled by the Supreme Court of akistan hat it bad been held time and again that the parties cannot contract themselves out of the provisions of law on the subject, namely. The West Pakistan rban Rent Restriction Ordinance. Similarly, neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a andlord accepts a delayed payment of rent by the tenant on a number of occasions cannot be said to have given rise to any practice whittling own the requirement of law that the rent has to be paid by the tenant by the 15th of every month. Similar view was expressed by the Supreme Court of akistan in Mirza Abdul Aziz Beg v. Musbtaq Ahmad Sheikh (1980 S. C. M. R. 834). Needless to add that the provisions of section 13 of the West akistan Urban Rent Restriction Ordinance 1939 are analogous to those of section 17 of the Cantonment Rent Restriction Act 1^63, . Certain authorities have been quoted by the learned counsel for the respondents about the exercise of discretion in favour of the tenant in case f default in payment of rent for a month or so but they are all distinguishable on merits. The learned appellate authority observed : "I hold that echnical default in payment of rent for the months of February and March, 1974, was not serious to be visited with appellant's (respondent in the present onstitutional Petition) ejectment order." The view taken in the matter by the learned appellate authority is legally erroneous because there was o justification whatsoever for the respondents' failure to pay the rent for a period of two months, viz, February and March, 1974, till June 1974. 10. As regards the plea of sub-letting the shop by respondent No. 1 to respondent No. 2 is concerned, it is a common ground between the parties and it has also been admitted in the written statement filed before the Rent Controller by the respondents that Qhulam. Abbas respondent agreement of tenancy and, therefore, the liability of the tenant to eject ment for non-payment of rent in such case takes place if the tenant fails to pay the rent within 60 days following the period for which rent is due, 8. According to the parties evidence on the record, it transpires that since February 1974, the respondents failed to pay rent to the petitioner. The jectment petition was filed on 1-6-1974, This shows that at the time of institution of the ejectment petition, the respondents had'already committed default in regard to payment of rent for the months of February and March, 1974. The mere fact that on earlier occasions, sometimes the landlord acoepted the payment of rent after intervals of 2/3 months cannot condone the default in payment of rent which amounts as such in ccordance with statutory provisions of section 17 ibid. In His Holiness Dr. Syedna Muhammad Burhanuddin Sabeb v. M/s Abdul Rebman Abdul Ghani (PLD 19sl arachi 164), it was held that the periodical acceptance of accumu lated rent without any objection by the appellant by itself did not amount to alteration of erms and conditions of written tenancy agreement, if any, or the provisions of law for- payment and tender of rent by the tenants as laid down in the ent estriction Act. The parties cannot contract them selves out of the provisions of law nor can any party plead a practice contrary to law. he enant required by law to pay rent by a specified time cannot allege contract or practice to get out of such obligation. The mere fact that the andlord accepted delayed payment of rent in the past cannot be said to have given rise to a practice for tenant to make delayed payment in derogation f he provisions of the Rent Restriction Act. In Abdul Rashid v. Saleh Muhammad (PLJ 1980 SC 431), it has been ruled by the Supreme Court of akistan hat it had been held time and again that the parties cannot contract themselves out of the provisions of law on the subject, namely. The West Pakistan rban Rent Restriction Ordinance. Similarly, neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord ccepts a delayed payment of rent by the tenant on a number of occasions cannot be said to have given rise to any practice whittling down he requirement of law that the rent has to be paid by the tenant by the 15th of every month. Similar view was expressed by the Supreme Court of akistan in Mirza Abdul Aziz Beg v. Musbtaq Ahmad Sheikh (1980S. C. M. R. 834). Needless to add that the provisions of section 13 of the West akistan rban Rent Restriction Ordinance 1959 are analogous to those of section 17 of the Cantonment Rent Restriction Act 1963, , 9. Certain authorities have been quoted by the learned counsel for the respondents about the exercise of discretion in favour of the tenant in case of default in payment of rent for a month or so but they are all distinguishable on merits. The learned appellate authority observed : "I hold that technical default in payment of rent for the months of February and March, 1974, was not serious to be visited with appellant's (respondent in he present Constitutional Petition) ejectment order." The view taken B in the matter by the learned appellate authority is legally erroneous ecause there was no justification whatsoever for the respondents' failure to pay the rent for a period of two months, viz. February and March, 1974, till June 1974. 10. As regards the plea of sub-letting the shop by respondent No. 1 to respondent No. 2 is concerned, it is a common ground between he parties and it has also been admitted in the written statement filed before the Rent Controller by the resppndents that Qhulam. Abbas espondent No. 1 had obtained the disputed shop on rent from the petitioner. All the receipts of rent have beenv issued by the petitioner in the name of the said respondent (No. 1). A few receipts, viz. exhibit R 1 to R 5 have been brought on the record. They also show that through these receipts, pay ment of rent was acknowledged by the petitioner from respondent No. i. Respondent No. 2 does not in any manner figure in these receipts. It is thus fully established that relationship of landlord and tenant in regard to the shop 1 in question exists between the petitioner and respondent No. 1. It has been admitted by respondent No. 2 and other P. Ws that respondent No. 1 went t> England in 1974 and thereafter he did not return. Since then respondent No. 1 is carrying on business in the said shop. It has, however, been itated by respondent No. 2 and his witnesses that even earlier to 1974, respondent No. 2 carried on business in the shop in question jointly with his brother, v/z. respondent No. 1 and even in his absence when on previous occasions also he went out of country, for instance in 1970-71. 11. The petitioner, however; led evidence to show that previously respondent No. 2 worked on the shop of his younger brother on Cantt. Road. He has further stated that when he learnt that Ghulam Mustafa respondent No. 2 was carrying on business in the shop in question, be filed the ejectment petition. In M/s. Premier Mercantile Service and another v. S M. Yunus and two others (P L J. 1982 S C. 271) on the dissolution of a registered partnership, a priavte limited company was constituted without informing or getting permission from the landlord. In such eventuality, it was held by the Supreme Court of Pakistan that a distinct legal entity having altogether different righis and liabilities with regard to third parties including the landlords, having been brought into existence, such change not to be unilaterally brought about by the tenants to transform their very legal existence in a manner to effect liability. It was further held that the tenant having permitted itself to be dissolved and then substituted by different legal entity was liable to eviction for having not taken the landlord into confidence. In the present case, the tenant himself left for England and handed over the possession of the shop to his brother who carried on business in that shop without the consent and permission of the landlord. This clearly amounts to sub-letting of the tenanted premises making the tenant liable to eviction under the provisions of the Canton ment Rent Restriction Act 1963. The otherwise finding recorded by the learned appellate authority that even on previous occasions, respondent No. 2 carried on business in' the shop when respondent No. 1 left for England without any objection by the petitioner amounts to waiver, is wrongful and not legally Sustainable. i 12. It is evident from the afore-mentioned conclusions that while passing the impugned order whereby the learned appellate authority despite the default in payment of rent proposed to exercise discretion in favour of the tenants and also in spite of the fact that respondent No. 2 was found to be in possession of the tenanted shop while the tenant viz. respondent No I had already left for England in 1974, set aside the plea of sub letting on the ground of waiver, has acted in disregard of the judgments of the superior Courts apart from recording erroneous findings. In Muhammad Sharif and another y. Muhammad Afzal Sohail etc (PLJ 1981 S.C. 660), it has been held by the Supreme Court of Pakistan that the Constitutional jurisdiction of the High Court to interfere in reiit matters is very limited and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the law relating thereto as laid down by the superior Courts. In the circumstances of the present case, as already observed, the District Judge has clearly disregarded the provisions of section 17 (2) (i) of the Canton ment Rent Restriction Act, 1963, and has also acted in utter disregard of the law laid down by the superior Courts including the Supreme Court of Pakistan on the points of default in payment of rent and sub-letting of the tenanted premises. Incidentally, the learned counsel for the respondents has also placed reliance on this authority of the Supreme Court. It thus transpires that this is a fit case for the invocation of the extraordinary writ jurisdiction of the High Court. 13. In the light of the fore-going conclusions, the under consideration writ petition is allowed. The impugned order passed by the learned Additional District Judge Rawalpindi is declared to be of no legal effect and to have been passed without lawful authority with the result that the order of eviction dated 5-7-1977 passed by the learned Rent Controller Rawalpindi Cantonment is restored. The respondents, however, are allowed three months' time from today for.vacating the tenanted premises. The respondents shall also pay the costs of this Constitutional Petition to the petitioner. (TQM) Petition allowed.
PLJ 1985 Lahore 91 PLJ 1985 Lahore 91 Present : gul zarin kiani, J Begum MASOODA ABDUL HAQUE Appellant versus Messrs. SHAN-E-MUSTAFA PRODUCTIONS, Lahore and Another Respondents Regular First Appeal No. 101 of 1984, heard on 13-10-1984. (i) Civil Procedure Code (V of 1908) 6 VII, R. 11 (a) Plaint Rejection of Cause of action Non disclosure of Held: While rejecting plaint on account of nondisclosure of cause of action, reference to be made to averments in plaint only and no other material including defence set up by defendant to be bfought under consideration Held farther : Question of plaintiff's succeeding at trial or not or his ability to substantiate allegations made in plaint at trial to be wholly irrelevant consideration for applying provisions of O. VII, r. 11 (a), C. P. C. (ii) Civil Procedure Code (V of 1908) - O. VII, R. 11 (a) Plaint Rejection of Cause of action Nondisclosure of Held: General policy of law being that civil suits to be decided on merits in accordance with procedure laid down for their trial in Civil Procedure Code after framing necessary issues and affording opportunity to parties to lead necessary evidence, plaint not to be rejected under O. VII, r. 11 (a) unless case falls strictly within ambit of rule. .[P. 93]B Kh, Haris Ahmad, Advocate for Appellant. Mr. Saifuddin Chughtai, Advocate for Respondents. Date of bearing : 13-10-1984, judgment This appeal is directed against order dated 9-7-84 passed by learned Additional District Judge, Lahore rejecting a plaint in suit filed nder Section 65 of the Copy Rights Ordinance 1962, under Order VII rule 11 CPC for disclosing no cause of action. 2. Necessary facts for the disposal of the present appeal briefly stated are that Messrs Paramount Pictures of whom late Mian Muhammad Shafi was the sole proprietor produced a feature film 35 MM titled "Naukar" (Urdu) somewhere in the year 1959. The said film was approved for public exhibition by the film Censor Board. It is stated in the plaint that on 1-7-81, late Mian Muhammad Shafi, a sole proprietor of Messrs Paramount Pictures through an agreement assigned/transferred the sole and exclusive right for exhibition, exploitation and distribution in respect of the aforenoted Cinematographic work in favour of the present plaintiff. Defendant No. 1 has produced a feature film "Raja Rani" which according to the plaintiff was a copy of the plaintiff's film "Naukar''. Theme idea, scenario of film "Naukar", allegedly, through an act of literary theft, has been copiously utilized in film "Raja Rant". This act infringed and offend ed the plaintiff's right in the cinematographic work "Naukar". Having come to know of this act of plagiarism, the plaintiff instituted above noted civil suit. Alongwith the plaint, an application under Order 39 rule 1 and 2 CPC for an interim relief restraining the defendants from selling, hiring or by way of trade displaying or offering for sale and hire, infringing copies of the petitioners aforementioned cinematographic work , etc. was also moved by the plaintiff. Defendants filed a written reply to the latter application. Written statement has not so far been filed. The learned Additional District Judge through a fairly detailed and lengthy order examined the merits and while disallowing interim relief, rejected the plaint also under Order VII rule 11 on 9-7-84. Correctness of order rejecting the plaint in such circumstances has been questioned by the plaintiff/appellant in appeal before this court. 3. I have heard learned counsel for the appellant and Mr. Saif-ud-Din Chughtai, Advocate for respondents who entered appearence in response to a pre-admissiqn notice from the Court. Learned counsel for the appellant contended that the learned Additional District Judge acted illegally and in disregard of the provisions of Order VII rule ll(a) CPC in rejecting the plaint on the sole ground that it did not disclose a cause of action. He stated that for rejecting a plaint, the allegations/averments in the plaint alone have to be looked into and it is not permissible for the court to travel beyond the four-corners of the plaint including the defence set up by the opposite party or the documents produced. If all the allegations contained in the plaint are accepted in mode and form and ,even then the plaintiff is not entitled to succeed in the light of prevailing law, then and then alone the plaint can be rejected. In the case under consideration, it was contended that the plaint did disclose cause of ac tion. It would be a different matter whether the plaintiff would succeed to establish it at trial. In case he failed, the suit then would be dismissed. In any case, the plaintiff was entitled to an opportunity to substantiate the Judge, Lahore for trial afresh who will also pass a fresh order on applica tion moved under Order 39 rules 1 .and 2 CPC. Parties are directed to appear before learned District Judge for further proceedings on 20-10-1984 Copy of the order be transmitted to the learned District Judge without any delay. (TQM) Appeal accepted
PLJ 1985 Lahore 94 [DB] PLJ 1985 Lahore 94 [DB] Present: abdul shakurul salam & muhammad aslam mian, JJ Syed MUJTABA AHMAD and 3 OthersAppellants versus CHIEF SETTLEMENT COMMISSIONER, Punjab, Board of Revenue, Lahore and AnotherRespondents ICA No. H7/1983, heard on 8-12-1984. (i) Registration of Claims (Displaced Persons) Act (III of 1956)
Schedule V read with Provisional Constitution Order (CMLA's 1 of 1981)Art. 9Entitlement certificateIssuance ofAuthorities appointed by State (duly) verifying claim of appellants for land abandoned during disturbances on account of creation of country- Held : Refusal to issue entitlement certificate to be clearly callous and arbitrary exercise of power. [P. 96]C (if) Limitation Act (IX of 1908)-
Ss. 5 & 12AppealDelay in filing ofCondonationSufficient cause forNo intimation regarding preparation of copy by office given to appellantAppellant also meanwhile going to Karachi and remaining sick due to gastirc troubleHeld: No rebuttal having been furnished, delay in filing appeal, if any, to be"condoned. [P. 95]A (iii) Law Re-constitution of Effect of Held : Law when reconstituted, previous law to go off Statute Book and new re-constituted law to operate. [P. 96]5 (ir) Provisional Constitution Order (CMLA's I of 1981) -Art. 9See : Registration of Claims (Displaced Persons) Act (HI of !956)-ScheduleV. [P. 96]C Mr. Abdul Waheed Khan, Advocate for Appellants. CA 1 Muhammad Nazir Ahmad, Khan, Advocate for Respondents. Date of hearing : 8-12-1984. judgment Abdul Shakurul Salam, J.Appellants' claim for properties abandoned in India was not being verified by the Claims Authorities when they approached this Court in Writ Petition No. 819/67 in which vide order dated 9-11-67, it was directed that "The Claims Commissioner shall proceed to re-construct the record on the basis of these duplicates and dispose of the petition in accordance with law." In due course the claim of the appellants was verified by the Deputy Claims Commissioner in Schedule I, VI and V of the Claims Registration Act, 1956, vide order dated 19-5-1979. On 11-10-1979, the appellants submitted an application for issuance of entitlement certificate in respect of the claim verified under Schedule V, to the Chief Settlement Commissioner. This was refused on the ground that the appellants had not complied with the provisions of Martial Law Regulation No. 84 which required submission of MR. I on or before 20th February, 1961. They filed Writ Petition No. 48-R-82 in which it was con tended that the claim of the petitioners was not verified prior to 1-9-61, therefore, the entitlement certificate should have been issued on the basis of the claim verified by the Deputy Claims Commissioner under para. 4 read with para. 6(3) of Martial Law Regulation No. 89." The plea was rejected on the ground that "The petitioners admittedly failed to file statement of true facts relating to their claim within the stipulated period, as such their original claim stood cancelled by virtue of sub-paragraph (3) of paragraph 3 of Martial Law Regulation No. 84 and therefore, it cannot be said that any claim was legally pending within the ambit of paragraph 4 of Martial Law Regulation No. 89, merely because the Deputy Cla ims Commissioner verified the. claim of the petitioners subsequent to the enforcement of Martial Law Regulation No. 89. The claim of the petitioners stood cancelled by operation of law under the aforesaid pro visions of Martial Law Regulation No. 84. This was a transaction past and closed. The Deputy Claims Commissioner, had, therefore, no jurisdic tion in law to verify the claims of the petitioners notwithstanding the failure of the petitioners to comply with the mandatory provisions of paragraph 3 (3) of Martial Law Regulation No; 84. The order of verifica tion of claim is ex-fade without lawful authority and therefore, the petitioners cannot be permitted to claim advantage under it in the exercise of writ jurisdiction, which is meant to foster justice and not to perpetuate an illegality." This is vide order dated 203-1983. The appellants filed appeal on 30-4-1980. Office noted that it was out of time. Learned counsel for the appellants submitted that deducting the period spent until delivery of copy, no intimation having been given earlier, it is within time. In the application under Section 5 of the Limitation Act it is stated that the appellant No. 1 who was prosecuting the appeal had gone to Karachi where he fell sick due to gastric trouble. No rebuttal has been furnished. In the circumstances, the appeal is held within time and delay, if any, is condoned. 2. The case on merits is classical example of the story asking for waiver of saying prayers and being imposed with an application to keep fast as well. The appellants had come to the High Court asking for issuance of entitlement certificate in respect of Schedule V on the basis of the verification of their claim by the Deputy Claims Commissioner. Not only their petition was rejected 1 but also the order of verification of claim which pertained to Schedule I & VI as well, by the Deputy Claims Com missioner was held to be without lawful authority. Nobody had challenged the verification of the claim by the Deputy Claims Commissioner. The learned Single Judge also fell in error in holding that the claiam of the appellants is "cancelled by virtue of sub-paragraph (3) of paragraph 3 of Martial Law Regulation No. 89," because this Martial Law Regulation itself had bsen superseded and was re-constructed "by the Martial Law Regulation No. 89 which itself in para. 4 provided that "Any claim pen ding for verification at the tims of the cotnoiencement of this Regulation shall be verified by such officer not below the rank-of an Additional Settlement Commissioner as may be appointed by the Chief Settlement Commissioner in that behalf," It is npdody's case that the Deputy Claims Commissioner who verified the claim of the appellants was not a compe tent Officer to verify the claim. He verifi.-d the claim of the appellants on 19-5-1979 Copy was delivered on 18-9-1979. The appellants on tbeir application dated 11-10-1979 were clearly entitled to the issuance of entitlement certificate. 3. Learned counsel for the Settlement Department has submitted ; firstly that the appeal is not competent in view of Section 3 of the Law Reforms Ordinance, 1972. Secondly, that the appellants were under legal obligation to have filed their statement of true facts under subparagraph (3) of paragraph 3 of Martial Law Regulation No. 84. It is thirdly contended that the Chief Settlement Commissioner was competent to fix a ate on which the statement of true facts was to be filed. It is fourthly submitted that the Martial Law Regulation No. 89 did not repeal Martial Law egulation No. 84 and paragraph 4 of the Martial Law Regulation No. 89 only saved those claims wherein statements of true facts had been filed by the claimants under Martial Law Regulation No. 84. 4. The contentions have no force whatsoever. The contention regar ding the competency of the appeal is without force for the reason that the learned Single Judge has not only rejected the petition for issuance of entitlement certificate in respect of Schedule V but has held the order of verification of claim to be without lawful authority. The order was not only in respect of verification of claim under Schedule V. but also under Schedule 1 I. Therefore, the order of the learned Single Judge is clearly appealable. As regards the contention that Martial Law Regulation No. 89 B id not repeal Martial Law Regulation No. 84, it need only be said that when a law i,s re-constituted, it obviously means that the previous law has one off of the Statute Book and it w the new re-constituted law which hall operate. The claim of the appellants for the land abandoned during he disturbances on account of the creation of the country has been verind >y the Authorities appointed by the Stats. It is unreasonable to urge that entitlement certificate should or cannot be issued. What is entitlement certificate ? It is inly that when a claim is verified by a competent Officer n Bighas and Biswas it may be transformed and calculated in terms of Produce Index Units. Now this little arithmetic exercise cannot be said to have the effect of taking away substantial rights of the citizens and nobody can say that he is not going to perform the functions of calculation entrusted to him by law. Refusal to issue entitlement certificate, in the circumstances, was clearly callous and arbitrary exercise of power. 5. In view of what has been stated above, the appeal is allowed with costs and the respondent No. 1 is directed to issue the requisite entitlement certificate to the appellants within the shortest possible time but not later than three months as much time has been wasted wantonly. (TQM) Appeal allowed.
PLJ 1985 Lahore 96 [DB] PLJ 1985 Lahore 96 [DB] Present: abdul shakurul salam & muhammad aslam mian, JJ MUHAMMAD MUMTAZ AHMAD KHAN and 3 OthersPetitioners versus FEDERAL LAND COMMISSION, Islamabad and 2 OthersRespondents Writ Petition No. 147 of 1977, heard on 26-11-1984. (i) Land Reforms Regulation (MLR 115), 1972-
Paras. 7 & 29 read with Provisional Constitution Order (CMLA's 1 of 1981)Art. 9State lacud Possession of Restrictions Federal Land Commission Revisional jurisdiction of Suo motu exercise of Donor transferring Dakheel Kari rights in State land to alienees after obtaining sanction of Collector Subsequently, Member, Federal Land Commission holding such alienation void even without making Provincial Govt. party to proceedings before it- Held : Provincial Govt. having accepted new tenants (in form of petitioners), no order 'affecting in any manner in choice of its tenants to be passed without making such Govt. party to proceedings Provisions of Land Reforms Regulation not vesting any authority in Land Commission to oust tenants adopted by Provincial Govt. or to reinstate old ones Held : Order affecting rights of new tenants of Provincial Govt. to be without lawful authority and of no legal effect. [P. 99 ]A , (ii) Provisional Constitution Order (CMLA's 1 of 1981) -- Art. 9 read with Land Reforms Regulation (MLR 115), 1972 Paras. 7 & 29 State la.nd Restrictions on possession ofDonor Locus tandi to file writ petition Donor transferring Dakheel kari rights in State land to alienees after obtaining sanction of Collector Subsequently, Member Federal Land Commission holding such alienation void Donor as well as donees challenging such order in writ jurisdiction Donor, however, on his application allowed to withdraw from petition Held : Rights having been vested in peti tioners (2 to 4) by accord of approval by Collector, such petitioners to have right to maintain petition notwithstanding exit of their predecessor (Petitioner No. 1). [P. 99Jfi (iii) Provisional Constitution Order (CMLA's l.of 1981) -- Art. 9 See : Land Reforms Regulation (MLR 115), 1972 Para . 7 & 29. [P. 99]A Land Reforms Regulation (MLR 115), 1972 -Paras. 7 & 29 See : Provisional Constitution Order (CMLA's 1 Of J981)-Art. 9. [P. 99}B Ch, Hamiduddin, Advocate for Petitioner. Mr, Muhammad Sair AH, Advocate for Respondent. Date of hearing : 26-11-1984. JUDGMENT Abdul Shakurul Salam, J. Muhammad Mumtaz Ahmad Khan petitioner No. 1 had Dakhilkari rights in 317 acres Ik 18m of State land situated in village Amin Kot, Tehsil Depalpur District Sahiwal (now Okara) On J8-2-1971 he applied under Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 before the Collector seeking permission to alienate the aforesaid land by way of gift in favour of Muhammad' Yousaf Khan, Mst. Aisha Saddiqa and Mst. Amina Riaz, petitioners No. 2 to 4. Permission was granted on 23-2-1971, Conse quently, a mutation of gift bearing No. 4 was sanctioned in favour of the donees, petitioners No. 2 to 4 on 31-3-1971. 2. Muhammad Mumtaz Ahmad Khan had filed a declaration under Martial Law Regulation No. 115 on 1-1-1967. The aforesaid alienation was accepted by the Land Commissioner, Multan Division, Multan op the alienation by the dtclarant-petitioner No. 1 in favour of petitioners No. 2 to 4 stood annulled and so it has been held by the Land Commis sion but the story does not end here. By operation of para. 13 of Martial Law Regulation No. 115 the land was to Vest in the Government free from any encumbrances and its further disposal was to be effected vide para. 18 of the said Regulation. In the case in hand the declaration that the alienation by the declarant-petitioner No. 1 in favour of the donees, the petitioner No. 2 to 4 was void would have the effect of reverting the land to the Provincial Government and in view of the decisions quoted by the learned counsel for the petitioners, the learned counsel for the respondents is also not in a position to dispute that. In no manner the land would be available to the Land Commission for disposal under the Land Reforms Regulation. As far as the Provincial Government is concerned, it may be recapitulated that it had accepted the donees, petitioners No. 2 to 4 as the new tenants in place of the old one the petitioner No. 1 when he was permitted to retire. During the course of proceedings in which the impugned order dated 3-11-1976 has been passed, the Provincial Government had not been impleaded as a party. The land vested in the Provincial Government. It had accepted the new tenants in the form of petitioners No. 2 t6 4. If it was to be affected in any manner in the choice of its tenants, it is elementary that the Provincial Government had to be made a party to the procedings, Nor any of the provisions of Martial Law Regulation No. 115 vested any authority in the Land Commission to oust the tenants adopted by the Provincial Government or to reinstate the old ones. Consequently, the order impugned in this petition so far as it affects the right of the petitioners No. 2 to 4 who had been accepted as new tenants by the Pro vincial Government is concerned, that is without lawful authority and of no legal effect. A word may be said about the petitioner No. 1, the declarant who after challenging the impugned order and admission of the petition, has. gone out of the arena and his petition has been dismissed as withdrawn. The effect of his action besides having been stated to be mala fide by the learned counsel for the petitioners No. 2 to 4, can have no consequence in these proceedings because as far as he was concerned, he had applied to the Collector for permission to transfer his rights in favour of petitioners No. 2 to 4 and after obtaining the said permission had got a mutation sanctioned in favour of petitioners No. 2 to 4. He abided by his acts and conduct and when interference was made by the Federal Land Commission in exercise of suo motu revisional jurisdiction, he came to this Court to challenge its order dated 3-11-1976. Later on, he seems to have changed his mind for what reason one need not fathom but this much is quite clear that he having himself given up his rights in favour of petitioners No. 2 to 4 and the rights having been vested in the latter by accord of the approval by the Collector and mutation No. 4 sanctioned in their favour by the Assistant Collector, the petitioners No. 2 to 4 have obviously a right to maintain the petition notwithstanding the exit of their predecessor, the petitioner No. 1. 5. In view of what has been stated above this petition is accepted and the impugned order as far as it affects the rights of the petitioners No. 2 to 4 re concerned, is declared to be without lawful authority and of no legal effect. In the circumstances, the parties shall bear their own costs. " (TQM) Petition accepted.
PL J 1985 Lahore 103 PL J 1985 Lahore 103 Present : muhammad ilyas, J SHAHNAZ BIBl-Petitioner versus ZULFIQAR ALI Respondent Transfer Application No. 280-C/1984, decided on 30-10-1984. (i) Family Couris Act (W. P. Apt XXXV of 1964) - -- S. 25-A Family suits Transfer of Common questions of law and fact likely to arise in suits brought by both parties Evidence to be produced by parties also to great extent (likely) to be same- Held : Conflicting findings on such questions to be avoided if both suits be heard and decided by one and same court. [P. (ij) Family Courts Act (W. P. Act XXXV of 1964) be -- S. 25-A Family suits Transfer of Petitioner claiming to Pardanashin lady apprehending trouble at hands of her husband in event of her going to either city to defend suit brought against her Held : Petitioner deserving to be accomodating in preference to respondent and her suit against respondent at Chicbawatni being also earlier in time, respondent's suit to be transferred to Chichawatni [P. 104]5 (iii) Family Courts Act (W. P. XXXV of 1964) S. 25-A Family suit Transfer of Family court Jurisdiction of Decision on question of Held : High Court not to decide question of jurisdiction in connection with transfer application before it and in absence of parties' absence. [P. 104]C Mr. Faiz Muhammad Sadiq, Advocate for Petitioner. Kh. Haris Ahmad, Advocate for Respondents. Date of hearing : 30-10-1984. judgment Mst. Shahnaz Bibi is wife of the respondent, Zulfiqar AH. She has made this petition for transfer of a suit for restitution of conjugal rights, brought against her, by the respondent. That suit is pending before the Senior Civil Judge, exercising powers of Judge, Family Court, Faisalabad . On the other hand, the petitioner has filed a suit for dissolution of marriage, against the respondent, which is being heard by Rao Akbar Ali, Judge, Family Court, Chichawatni, District Sahiwal. She has made this petition (T. A. 280/C of 1984) for transfer of the respondent's suit to the above Court at Chichawatni. As against this, the respondent has made a separate petition (T. A. No. 264/C of 1984) for transfer of the petitioner's suit to the said Court at Faisalabad. (In his peiition, the respondent has mentioned the petitioner as Shahnaz Begum). This order shall dispose of both the petitions. 2. In view of the nature of the two suits, common questions of lawl . a.nd fact are likely to arise therein and, the evidence to b.e produced by the) parties will also, to a great extent, to the same. Conflicting findings on (such questions can be avoided if both the suits are heard and decided by |one nd the same Court. Further, if two suits are allowed to be heard by the Courts now seized of them, the petitioner will have to go to Faisalabad to defend he suit brought by the respondent and the latter will have to visit Chichawatni to resist the suit instituted by the former, It is, there fore, my desire that one f the parties should be saved of the brother and expense to which she/he would be put for going to a place other than the place of her/his residence to ntest the suit against her/him, which of the two parties should be helped in this regard is the question which now falls for consideration. Since the etitioner is a female but the respondent is a male, and the petitioner claims to be a pardahnashin lady and apprehends trouble at the hands of the espondent in the event ot her going to Faisalabad to defend the suit brought against her, I feel that she deserves to be accommodated in reference to the respondent. Her suit is also earlier in time. I am, therefore inclined to transfer the respondent's suit to Chichawatni It was contended by the learned counsel for the respondent that the petitioner lived in Samundari, District Faisalabad, and not in Chicha watni, istrict Sahiwal, and, therefore, the Family Court at Chichawatni did not have territorial jurisdiction to try the suit instituted by her. Whether or not the etitioner ordinarily resides within the local limits of the Family Court of Chichawani is a question of fact which, if raised befor the said Court, will be udicially determined by it after recording the parties' evi dence. In my humble opinion, it would not be proper for me to decide the question of jurisdiction n connection with the transfer application before me and in the absence of the parties' evidence, I did not call upon the parties to produce evidence nor his is the stage for so doing. Expression of any opinion by me on the issue of territorial jurisdiction is likely to in fluence the decision of the learned amily Court on that question. I would, therefore^ not like to say any thing in the matter while disposing of the petition in hand. The view taken by me is upported by the case reported as Mst. Irsbad Bibi v. Basbir Ahmad [(1976 Law Notes ( Lahore ) 412)]. 3. For the reasons enumerated earlier, it is a fit case for transfer of the respondent's suit from the Court of Family Judge (Senior Civil Judge), Faisalabad , to that of the said Family Court at Chichwatni. I, therefore, order accordingly. The parties are left to bear their own costs. Case transferred.
PLJ 1985 Lahore 104 PLJ 1985 Lahore 104 Present : muhammad ilyas, J BASHIR AHMAD-Petitioner versus MUSHTAQ AHMAD-Respondent Civil Revision No. 432/81, decided on 12-11-1984. (i) Court-Fees Act (VII of 1870) S. 7 (iv-A) & (iv) (c)Declaratory suitCourt-fee onClaim of plaintiff not based o$ alleged sale, gift, exchange or mortgage but on 3. It was by means of section 8 of the Punjab Finance Act, 1973, that clause (iv-A) was inserted in section 7 in the Court Fees Act. Relevant ortion of section 8 of the Punjab Finance Act reads as follows : "8. Amendment of Court Fees Act, 1870 (Act No. VII 1870.In the Court Fees ct, 1870 (Act No. VII of 1870) in its application to. the Province of the Punjab , (o) In section 1 (/) in clause (iv), the comma at the end shall be replaced by a colon and thereafter the following proviso shall be added : 'Provided that nothing in this clause shall apply to suits mentioned in clause (iv-A)', JUDGMENT (ii) after the existing clause (iv), the following new clause shall be added '(iv-A). For a declaratory decree regarding immovable property on the basis of alleged sale efe.-In suits for a declaratory decree with or without consequential relief as to right in or title to immovable property based on alleged sale, gift, exchange or mortgage according to the value of the property,'Before the above amendment was made by section 8 of the Punjab Finance Act, provisions relating to suit for declaratory decree and conse quential relief, relating to movable as well as immovable property, whether based on alleged sale, gift, exchange or mortgage or otherwise, ere contained in sub-clause (c) of clause (iv) of section 7 of the Court Fees Act, and it was for the plaintiff to state the amount at which he valued the relief sought. Thus, provisions of clause (iv-A), which 'relate to suits for a declaratory decree regarding immovable property based on alleged sale, gift, xchange or mortgage, are in the nature of an exception to subclause (c) of clause (iv). 4. One of the objects for which law relating to Court fee for declara tory suits was amended! by means of section 8 of the Punjab Finance Act was o discourage declaratory suits which were aimed at acquiring lights or title to, or interest in, immovable property by avoiding payment of expeJses which are required to be incurred for execution and registration of deed for acquiring such rights, title or interest. Before the addition of clause v-A), collusive suits for declaration used to be filed to procure documentary evidence regarding transfer of rights or title to, or interest in immovable operty. For instance, if a father wanted to transfer some landed property to his son, the former asked the latter to institute a suit for eclaration o the effect that the former had made a gift of the pro perty in his favour and on the filing of such suit, the former confessed judgment hereupon he Court passed consent decree in favour of the latter, and the same was made use of by him as a document of title. In this way, they voided purchase of stamped paper for execution of a gift deed and the payment of registration charges. This is no longer possible under the amended aw, 6. Clause (iv-A), as worded at present, obliges a plaintiff to pay Coun fee according to the value of the immovable prc perty if his claim is basec on alleged sale, gift, exchange or mortgage However, if the claim of the plaintiff is not so based and is founded on something else, such as right of inheritance, but his claim is refuted by the defendant by placing reliance on alleged sale, gift, exchange or mortgage, the plaintiff will not be required to pay Court-fee according to the value of the property and will be at liberty to state, under sub-clause (c) of clause (iv), the amount at which he values the relief sought. In the instant case, the petitioner has challenged the validity of the mortgage relied upon by the respondent. Since the petitioner's claim is not based on the alleged mortgage and, instead, he is seeking declaration to the effect that this right of ownership in regard- to the land in question is not affected by the mortgage relied upon by the respondent, the petitioner's suit does not attract the provisions of clause (iv-A). It falls within the purview of sub-clause (c) of clause (iv) and, therefore, no valid exception can be taken to the valuation of the suit fixed by him Rs. 200/-. Similar view was expressed by me in Lai Din and another v. Rasul Bibi (P. L. J. 1982 Lahore 356). 5. Resujiantly, I accept this civil revision, set aside the order of the learned Civil Judge and direct him to proceed further with the suit in the light of above observations and according to law. There shall be no order as to costs. (TQM) Petition accepted.
PLJ 1985 Lahore 107 PLJ 1985 Lahore 107 Present: gul zarin kiani, J NUSRAT BIBIPetitioner versus DISTRICT JUDGE, Lahore and AnotherRespondents Writ Petition No. 3848/44, heard on 3-12-1984. (i) Family Courts Act (W, P. Act XXXV of 1964) -S. 5Restitution of conjugal rights - Suit forHeld Contract of marriage entered into between parties to create right in favour of husband to pray for company of wifeHeld further : Rukhsati or consummation of marriage not to be required to have taken place earlier for claiming such right through suit for restitution of conjugal rights. [P. 110]B (ii) Family Courts Act (W. P. Act XXXV of 1964)
S. 5Restitution of conjugal rightsSuit forHeld : Married persons to be bound to live together and share rights and obliga tions springing from arriage contractOne or other of spouses withdrawing himself or herself without lawful cause before or after consummation of marriage eld uch violation of duty to entitle injured party to seek necessary relief through court of law. [P. 110]C " AIR 1956 Mad. 288 ref. (iii) Family Courts Act (W. P, Act XXXV of 1964)- -- S. 5 read with West Pakistan Family Courts Rules, 1965 R. 6 Restitution of conjugal rights Suit for Court Jurisdiction of Husband admittedly residing at Lahore Rukhsati in pursuance of marriage contract, however, not taking place Held : In case of refusal of wife to join husband at his residence, husband to be com petent to legitimately seek assistance of court of competent jurisdiction at Lahore in properly constituted suit for restitution of conjugal rights compelling her to join at his residence. [P. 1.1 1]£ (iv) Family Courts Act (W. P. Act XXXV of 1964) - -- Ss. 5 & 26 read with West Pakistan Family Courts Rules, 1965 R. 6 Restitution of conjugal rights Suit for Family Court Jurisdiction of Parties not residing together Even no rukhsati taken place Held : Question of jurisdiction in suit for restitution of conjugal rights to be governed by rule 6 (a) of Family Courts Rules, 1965. [P. (V) Provisional Constitution Order (CMLA's 1 of 1981) -- Art. 9 read with Family Courts Act (W. P. Act XXXV of 1964) Ss. 5, 14 & 26 and West Pakistan Family Courts Rules, 1965 R. 6 (o) Error of law Correction of by appellate court Order of Challenge to Writ jurisdiction Interference in Trial Court re fusing to exercise its jurisdiction by misconstruing provisions of rule 6 (a) of Family Courts Rules, 1965 Appellate court Correcting such obvious error of law committed by trial Court Held : Order passed in appeal suffering from no error of jurisdiction, constitutional petition (challenging order of appellate Court) to have no force. [P.lll]£&F (vi) Family Courts Act (W. P. Act XXXV of 1964) -- Ss. 5, 14 & 26 See : Provisional Constitution Order (CMLA's 1 of 1981) Art. 9. [P.U1]EAF (vii) West Pakistan Family Courts Rules, 1965 -- R. 6 See : Family Courts Act (W. P. Act XXXV of 1964) S. 5 & Ss. 5 & 26 and Provisional Constitution Order (CMLA's 1 of 1981) Art. 9. [Pp. 110 & 111]X, D, E & F Nemo for Petitioner. Syed Samar Hussaih Shah, Advocate for Respondent No. 2. Date of hearing : 3-12-1984. judgment Parties were married on 5-10-1979 at Kasur. Petitioner wife is resident of Kasur whereas respondent/husband resides at Lahore. Rukhsati in pursu ance to the marriage contract admittedly has not 'taken place and the marriage has not been consummated so far. Faqir Hussain husband through a suit for restitution of conjugal rights prayed for restoration of marital rights and obligations. Suit was instituted before Judge Family Court at Lahore. Mst. Nusrat Bibi, defendant in her written statement objected to the assumption of jurisdiction by the Family Court at Lahore. Ground urged in support of the objection was that since the marriage had 4. Under section 5 of the Family Courts Act 1964 exclusive jurisdic tion has been conferred upon the Family Court to entertain and adjudicate upon matters specified in the schedule i.e. dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage. Rules, known as West Pakistan Family Courts Rules, 1965, have been framed under section 26 of the West Pakistan Family Courts Act 1964. Jurisdiction of Family Court is regulated by rule 6 of the afore noted Rules. It reads : 6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which : (a) the cause of action wholly or in part has arisen ; or (b) where the parties resided together, provided that in Suits for dissolution of marriage or dower, the court within the local limits ofwhich the ife ordinarily resides, shall also have jurisdiction. Parties have not resided -together. Since rukhsati has not taken place,, therefore, question of jurisdiction in a suit for restitution of conjugal rights will be governed by rule 6 (a) of the West Pakistan Family Courts Rules, 1965. The question arising for decision was whether causd of action for a suit by a usband claiming restitution of conjugal rights arose wholly or in part within Lahore . The effects of valid (Sahih) marriage are stated in para. 265 of ahomedan Law by D.F. Mulla. It reads : "A valid marriage confers upon the wife the right of dower, maintenance and residence in her husband's house, imposes upon her the obligation to be faithful and obedient to him, to admit him to sexual intercourse, and to observe iddat. It creates between the parties prohibited degrees of relation and reciprocal rights of inheritance". Contract of marriage entered into between the parties, created a right in favour of the husband to pray for the company of his wife. For claiming such a right through a suit for restitution of conjugal rights, it was not at all necessary that rukhsati or consummation of marriage should have taken place earlier. Marriage contract itself created certain rights and obligations. One of them being that a husband can claim restoration of marital ^relationship. The gist of the action for restitution of conjugal rights is that the married persons are bound to live together and share the rights and obligations springing from the marriage contract. If one or the other has withdrawal himself without lawful cause either before or after consummation, it is a violation of conjugal duty which entitles the injured party to seek necessary relief through a court of law. The wife in the lormal circumstances is to follow the abode of her husband. In case V. G. Venugopal Naidu v. Lakshmi Animal and another (AIR 1936 Madras 288), a Division Bench of the Madras High Court dealing with the ques tion with regard to cause of action for a suit of restitution of conjugal rights observed : "The cause of action for a suit for restitution of conjugal rights arises from the duty of the wife to reside with her husband unless he has been guilty of some matrimonial offence which justifies her, in the eye of the law, in living apart from him. The fact that the wife has not previously lived with her husband within the jurisdiction cannot make-any difference ; neither the fact that the marriage was not consummated can make any difference. The court where the husband lives will have jurisdiction to try the suit because cause of action arises where the hushand lives and where the wife refuses to live. 5. Admittedly, the residence of husband is at Lahore. He is entitled to have the company of his consort at his usual residence i.e. in Lahore. In case she refuses to join him at his residence he can legitimately seek the assistance of the Court of competent jurisdiction at Lahore in a properly constituted suit for restitution of conjugal rights compelling her to join him at his residence. Cause of action, therefore, for a suit for restitution of conjugal rights, in the circumstances of this case clearly arose within the territorial jurtsdictional limits of the Family Court at Lahore. Learned District Judge, therefore, rightly interfered in appeal and set aside the judgment passed by learned Judge Family Court. Order passed in appeal does not suffer from any error of jurisdiction. Rather it has corrected anL obvious error of law committed by the trial court in refusing to exercise! its jurisdiction by misconstruing the provisions of rule 6 (a) of the Family) Courts Rules, 1965. In view of what has been stated above, I find,'no force in the presentj F constitutional petition and proceed to dismiss it with no order as tol costs. (TQM) Petition dismissed.
PL J 1985 Lahore 111 fDB] PL J 1985 Lahore 111 fDB] Present: rustam S. sidhwa & lehrasap khan, JJ ABDUL AZIZ KHAN-Petiiioner versus ABDUR RAHMAN and AnotherRespondents "- Writ Petition No. 524/84, heard on 16-12-1984. (i) Provisional Constitution Order (CMLA's 1 of 1981)
Art. 9 read with Punjab Local Councils (Election Petitions) Rules, 1979Rr. 9, 3, 4 & 5Election petitionDismissal ofOrder of Challenge to Writ jurisdiction Interference in No good or sufficient cause shown for gross violation of rulesHeld : Election Tribunal to be competent to exercise its discretion against petitioner Tribunal discussing arguments of both parties before giving its findings Held : Tribunal having exercised its discretion on proper^ judicial principles, no interference in matter to be properly made by High Court in its constitutional jurisdiction, [P. 117JG PLD 1963 SC 382 ; PLD 1963 Lab. 501 ; 1984 SCMR 906 : PLD 1968 Journal (Election Tribunal) 95 ; PLD 1980 Lah 784 ; 1984 CLC 1464 & W. P. No.|596 of 1984 ( Lahore ) ref. (ii) Punjab Local Councils (Election Petitions) Rules, 1979 Rr. 3, 4, 5 & 9Election petitionFiling ofNon-compliance of rulesEffect ofHeld : Rules 3, 4 & 5 though placed at technically sensitive level to ensure quick and speedy disposal of case on grounds of public policy, discretion of Election Tribunal to deal with each caseaccording to its own particuiar facts to remain intactHeld further : Word "may" having been used in rule 9, Tribunal to have power to deal with each type of violation according to its particular import and to also decide whether non-compliance to be permitted to be cured or must be visited with dismissal of petition. [P. 116 ]C PLD 1980 Lah. 784 & PLD 1968 Journal (Election Tribunal) 95 ref. (iii) Punjab Local Councils (Election Petitions) Rules, 1979
Rr. 9, 3, 4 & 5 Election petitionFiling ofNon-compliance of rulesEffect of Held: Party accused of violation of any of rules to be competent to show cause, sufficient to satisfaction of Election Tribunal, to enable such Tribunal to permit petitioner to cure omission Held further : Election Tribunal to (preferably^ frame issues in matter and to permit parties to lead evidence thereon before dismissing petition on ground of non-compliance of rules. [P. 116]£> (it) Punjab Local Councils (Election Petitions) Rules, 1979 -R. 8Election PetitionTrial ofCivil Procedure Code (V of 1908)Applicability ofHeld : Strict application of procedure relat ing to trial not to be mandatory (in case of election petition). [P. (v) Punjab Local Councils (Election Petitions) Rules, 1979
R- 9Election petitionDismissal ofPetitioner participating inhaving matter decided through arguments without filing application to have any issue or issued framed Held : Summary disposal of case for grounds given in rule having not been entirely excluded, dis missal of petition in case (without framing any issue or recording any evidence) not to be in violation of law, [P. 117]F (vi) Interpretation of Statutes
Procedural provisionsInterpretation ofHeld : Procedural pro visions to be interpreted as being relatable to fair trial of case and all moves within its class to be treated as sub-servient to such pur pose. [P. 114]5 PLD 1963 SC 382 & PLD 1963 Lah. 501 ref. (vii) Practice & Procedure Procedural provisions Application of Procedural provisions inviting penalty for their violationHeld : Such provisions not to be too technically applied in case of their blind application thwarting rather than helping justiceHeld further : All technicalities normally to be avoided unless compliance with them be essential on grounds of public policy. [P. H4[A PLD 1963 Lah. 501 (at 505) ref. (viii) Punjab Local Councils (Election Petitions) Rules, 1979
Rr. 9, 3, 4 & 5See : Provisional Constitution Order (CMLA's 1 of 1981)-Art. 9. P. 117 The above relief with the condition that he or some other person should be ordered as duly elected. See'rule 5 (2) (6). or (Hi) The election to be declared void as a whole. See rule 5 (2) (c). (F) The signature of the petitioner and verification in the manner as laid down in the C. P. Code for the verification of pleadings. See rule 5 (3). (G) A note showing that copies of the petition have been delivered to the respondents personally or by registered post. See rule 4. The petition must be accompanied by (H) Schedules and Annexures, if referred to in the petition, duly signed and verified in the manner as laid down in the C. P. Code. See Rule 5 (3). (I) a receipt showing deposit of Rs. 500/- with any branch of the National Bank of Pakistan in favour of the Election Authority, is security for the costs of the petition. See Rule 3 (4). The petition must be presented to the Tribunal (J) By the petitioner on his authorised agent personally. See rule 3 (2) (a). or (K.) By the petitioner through registered post. See rule 3 (2) (b). The petitioner must avail his remedy before the Tribunal (L) within thirty days next after the publication of the result in the official gazette. See rule 3 (1). The requirement pf (A) is to ensure that all necessary and proper parties are before the Tribunal at the very earliest instance, to enable it effectually and completing adjudicate upon and settle all the disputed questions which may arise out of the petition ; that of (B), (C) and (D) are jo ensure that the full facts showing the corrupt or illegal practice or illegal act are clearly and concisely set forth, with necessary particulars and details, so that both the Tribunal and the contesting parties may know the case of t summary disposal of ths, for grounds given in this rule, is not entirely excluded. In the instance case, the petitioner did not file a replication,! but participated in having the matter decided through arguments, withoutL filing an application to have any issue or issues framed. The summaryj procednre adopted by the Tribunal is, therefore, not in violation of the] law. No exception can now be taken to the said procedure. 8. We now turn to the violation of the rules, in respect of which tn» petitioner's election petitition was dismissed. It cannot be denied that the petitioner when he filed his election petition against the respondent did not attach with the petition a copy of the receipt that he had deposited the secu rity f Rs. 500/-. Likewise, the petitioner did not deliver a copy of the petition to the respondent either personally or by registered post, in advance or t the time en he filed the petition. Further, he did not sign and verify in the manner as laid down in the Cods of Civil Procedure, 1908, annexures filed by him with is petition. As regards the omission to deposit the security, the petioner, in para. 13 of his election petition, stated that he had deposited the sum of s. 3'Jty- in the National Bank of Pakistan, in accordance with the provisions of Rule 3 (4) of the Election Petitioni Rules, the receipt whereof he had ttached with the petition. This asser tion was palpably false in that no sum was deposited under the said pro vision of law nor any receipt was ttached by the petitioner with the peti tion. As regards the omission to deliver a copy of the petition to the respondent and to sign and verify the nnexures to the petition, oversight alone was pleaded. In these circumstances, there cannot be any doubt that the matter was attended rudely and negligently and there was a gross violation of rules, for which neither good nor sufficient cause was shown for each non compliance. This as sufficient to permit the Election Tribunal to exercise its discretion against the petitioner, which it did. In the im pugned order, the Election Tribunal as discussed the arguments of both the parties, before giving the finding. The Election Tribunal having exercised its discretion, as conferred n it by law, on proper judicial principles, it is not proper that this Court should interfere in the matter in its canstitutional jurisdiction. In any case, he order of the Election Tribunal is not without lawful authority. 9. For the foregoing reasons, there being no merit in this petition, the same is dismissed. Parties are left to bear their own costs. (TQM) Petition dismissed.
FLJ 1985 Lahore 117 [DBJ FLJ 1985 Lahore 117 [DBJ Present : saad saood jan & rustam S. sidhwa , JJ llaii MUHAMMAD SABIR-Appeilant versus GHAZI COMMERCIAL MNANCE LIMITED (in liquidation), througti Official Liquidator, LahoreRespondent fCA No, 1 of 1984, decided on 4-12-1984. (i) Companies Act (1 of 191.1) -
Ss. 229 & 202 read with Provincial. Insolvency Act (V of 1920) Ss. 45 & 46 and Law Reforms Ordinance (XII of 1972) S. 3 - CompanyWinding up ofCompany JudgeOrder of Challenge to Appellant not debtor at all on date of liquidation or adjudicationHeld: Order of Company Judge calling upon appellant to pa> back certain amount to be against law on subject. [Pp. 120 & i21]F (ii) Companies Act (1 of 1913) - S. 229 Insolvent company Winding up of Law of insolvency Rules regarding \pplicability of Held : Word "rule" in S 2^9 to ean provisions laid d<r,v,i in Insolvency Acts relating to rights ofsecured creditors (md not rule;, under SJch Acts) Held further: Provisions to be mported fronrlnsolveucy Acts must be tbose relatable to matters stated in S 22 of Companies Act. [P. 120]A & B AIR 1942 Oudh 417 & AIR 1929 H. 353 ref. (iii) Evidence Act (I of 1872) - -- -S. 115 Estoppel Doctrine ofApplicability of Company Judge finding certain amount due from appellant Appellant expressing his willingness to clear amount by particular date failing which coercive measures to be taken against him Held : Legal liability having not been admitted, appellant not to he estopped from challenging order of Company Judge. [P. 121]G (If) Provincial Insolvency Act (V of 1920) -- -S. 46 Insolvent and creditor "Mutual dealings" iMeaning of Held : Words "mutual dealings" in S. 46 not to be confused with mutual dealings arising out of mutual, open and current account Insolvent's creditor (also debtor at same time, though compelled to pay entire mnint due from him, receiving only dividend on amount due to him Held : Injustice arising in such case to be pre vented. [P. 120.C&D 23 1C 927 & AIR 1940 Mad. 266 ref. (?) Provincial Insolvency Act (V of 1920) -- S. 46 -^Property Administration of Mutual dealings and set off- Procedure regarding Applicability of Held : In order to apply S. 46, both claims must be pecuniary debts between sains parties in same capacity or right. [P. 120]£ (vi) Law Reforms Ordinance (XII of 1972)- -- Ss 3. See : Companies Act (I of 1913) Ss, 229 & 202. [Pp. 120 & (vii) Provincial Insolvency Act (V of 1920) -- Ss. 45 & 46 See :' Companies Act (1 of 1913) Ss. 229 & 202 [Pp. 120 & 121JF Syed Muhammad Naqi, Advocate for Appellant. Liquidator for Mr. Zahid Hussain Khan, Advocate, Official Respondent. Dates of hearing : 10 & 13-11-1984. JUDGMINT Bus tarn S. Sidhwa, J. -This is an inter court appeal preferred by Haji Mohammad Sabir, appellant, against the order of the Company Judge dated 14-J-19d4 directing the appellant to refund Rs. 4200 - to the official liquidator, being the excess advance rent received by him 2. The brief facts of the case are that on 1-5-1979, Haji Mohammad Sabir, appellant, rented out a shop in Nowshera Virkan, District Oujranwala. to the Ghazi Commercial Finance Limited, a company presently under liquidation, for five years at a rental Rs. 700/- per mensem. Rs 400/- .were received by the appellant from the said company as advance rent for one year. On 25-10-1979, the company went into liquida tion, through a winding up order passed on that day. On 27-11-1'79, Mr. Zahid Hussaio, Advocate, was appointed as official liquidator of the said company. On 22-5-1980, the appellant filed a claim with the official liquidator for the refund of Rs. 4165/- as creditor being the sum eposited hy him in the Small Investment Scheme account with the said comodii,. On 9-7-1980. the official liquidator vacated the rented shop of the oneiidiit. On 19-5-1983. the official liquidator submitted a report to the Comnanv Judge inter alia showing the appellant as a debtor ^rith regard to the um of Rs. 4200'-, being advance rent held by him in excess, as on the date of the winding up order. The Company Judge issued a notice to the poellant to pay up th.i said amount. The appellant filed a renlv claiming that he was entitled to full rent from the Company from 1-51979 to 9-7- 980 a»d the further sum of Rs. 4165/-which was due to the Company to him on his Small Investment Scheme Account. On 14-3 1984, the said atter came up before the learned Company Judge. On behalf of the appellant it was pleaded that since the official liquidator bad vacated the shop on 7^1980, the advance rent of Rs. 84QO/- paid to the apoellant stood exhausted on 30-4-1980 and that, in any case, further ent from 1-5-1980 to 9-7- 980 was due and payable by the official liqui dator to the appellant as rent. However, the learned Company Judge held that on the date hen he company went into liquidator, i.e. 25-10-19 7 9. the appellant was a debtor to the extent of Rs 4200/-, being holder of excess advance rent on hat date. He, was, therefore, directed to pav up the said amount. Being aggrieved by the said order, the appellant has preferred the present nter court appeal, which is now before us for disposal. 3. On behalf of the appellant it is submitted that by virtue of Sec ion 229 of the Companies Act, 1913, in the winding up of an insolvent company the same rules should be applied and observed with regard to the respective rights of secured and unsecured creditors and to debts provable as are available for the time being under the law of insolvency with respect to the estate of persons adjudged insolvents. It is further submitted that under section 45 of the Provincial Insolvency Act, 1920, a creditor can prove for a debt not payable when the debtor is adjudged an insolvent, as if t were payable presently, and under section 46 of the same Act, where there have been mutual dealings between an insolvent and a creditor proving or laiming to prove a debt under the said Act, an account can be taken of what is due from one to the other in respect of such mutual ealines. and he sum due from one can be set off against any sum due from the other, and the balance of the account alone,.and no more, can be claimed or paid n either side respectively. It is, therefore, urged that there was no debt due and pavable by the appellant on the date of adjudi cation, i.e. 14-3-1984. nd that assuming there was any other debt, he would have had the right of setting off Rs. 4lo5/-, which was the'amount payable by the Company to im on his Small Investment Scheme account, and Rs. 1610/, which was rent due to htm from 1-5-1980 to 9-7-1980. On behalf of the official liquidator it is submitted that the appel lant had a right to claim the rent Tor the period 25-10-1979 to 9-7-1980 through a separate application, as a creditor, which claim he can file and which would be considered when claims of creditors are adjudicated. 5. We have given our anxious consideration to this case. Section 229 of the Companies Act provides that in the winding up of an insolvent company, the same rules are to prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debts provable as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvents.. The word "rule" in thisi section does not mean the rules under the Insolvency Acts. What it meansL is the provisions laid down in the Insolvency Acts relating to the said sub I ject. See B. Anand Behari Lai v Dinshaw and Co Ltd (AIR 1942 Oudhl 417). In Hansraj & others i. Official Liquidator, Dehra Dun Mussoorie Electric Tramway Co. Ltd. (AIR 1929 All 353), a Full Bench of the Allahabad High Court held that the phrase "the same rules under the law of insolvency" in this section was wide enough to include the provisions contained in the Provincial Insolvency Act, the rules made under any power conferred b.y that Act and the rules of practice applicable in the matter, unless there was something in the Companies Act itself which already provided for the matter in question. However, one thing is. clear that the provisions to be imported from the Insolvency Acts should! be those relatable to matters stated in Section 229 of the Companies Act.! Under section 34 (2) of the Provincial Insolvency Act, save debts which/ cannot be proved under section 34 (1), a!l debts and liabilities, present or future, certain or contingent, to which the debtor is subject when he is adjudged insolvent, or to which he becomes subject before his discharge by reason of any obligation incurred before the date of such adjudication, are treated by legal fiction as debts payable under the Act. Under section 45 of the said Act, a creditor can prove for a debt not payable when the debtor is adjudged an insolvent, as if it were payable presently. Under section 46 of the same Act, where there have been mutual dealings between an insolvent and a creditor proving or claiming to prove a debt under the Act, an account can be taken of what is due from the one to the other in respect of such mutual dealings, and the sum due from one can be set off against any sum due from the other, and the balance of the account, and no more, can be claimed or paid on either side respectively. The words "mutual dealings" in Section 46 should not be confused with mutual dealings arising out of a "mutual open and current Account", as that expression is used in Article 85 of the First Schedule to the Limitation Act, 1908. The principle behind section 46 is to prevent injustice which would arise after a perso.n who is the insolvent's creditor on one account and his debtor on the other, 'is compelled to pay the entire amount due by him, D receiving only a dividend on the amount due to him. See Seth Radha Kishan v. Firm Ganga Ram (23 I. C. 927) and Sundaravaradan v. Official Liquidator, T. N. B. Subsidiary Company (AIR 1940 Mad. 266). Thus, where two persons have dealt with each other on mutual credit and one of them becomes insolvent, the account can be settled between them and the balance only, which is found due on either side, is treated as payable. In order that Section 46 may apply, both the claims must be debts, both must be pecuniary, both must be between the same parties i.e. the insol vent and the creditor, and both must be in the same capacity or right. In the light of these provisions, the appellant cannot be stated to be a debtor at all, neither on the date of liquidation i.e. 25-10-1979, nor on the date of adjudication / e. 14-3-1984. It appears that this legal position was not brought to the notice of the learned Company Judge. In these circurn- (stances, the order of the learned Company Judge dated 14-3-1984 calling Jupon the appellant to pay back R. 42QQ, appears to bt i|tiBSt the law on |the subject. 6. On behalf of the official liquidator it is pointed out ,that as the appellant had agreed to pay Rs. 4200 by 20th April, 1984, before the learned Company Judge, that he is estopped from challenging the impugn ed order. We notice from the order that the appellant at no stage accep ted is liability. We are informed by the learned counsel for the appellant that after the matter was adjudicated against the appellant, he was asked to ignify he period by which he was prepared to clear the same, failing which coercive measures would be taken against him and, in answer to that question, e gave the date, which has been recorded in the order. Other than this, it was nowhere conceded by the appellant that he ad mitted the legal osition as found by the learned Company Judge. We agree with this submission.. It does not appear from the order that the appellant admitted is legal liability, as found by the learned Company Judge. He only expressed his willingness to clear the amount by a parti cular date, after which oercive measures could be taken .against him. In these circumstances, nothing turns on the objection raised by the Official Liquidator. 7. For the foregoing reasons, we accept this appeal and set aside the order of the learned Company Judge dated 14-3-1984, to the extent that it alls upon the appellant to refund the advance rent of Rs. 4200/- (TQM) Appeal accepted-
PLJ 1985 Lahore 121 [DB] PLJ 1985 Lahore 121 [DB] Present: abdul shakurul salam & muhammad aslam mian, JJ CLIMAX ENGINEERING COMPANY LIMITED, Gujranwala through Managing DirectorPetitioner versus SHABIB AHMAD and AnotherRespondents Writ Petition No. 5378/84, decided on 22-12-1984. (i) Industrial Relations Ordinance (XXIII of 1969) -S. 25-A Individual grievance Redress of Termination of servicesChallenge toAcceptance of duesEffect ofEmployee accepting dues for period during which he served-Held : By accept ance of such dues after termination of services employee not to be presumed to have accepted his termination as well so as to debar him from challenging same before competent Court or tribunal. [P. I23JB (ii) Provisional Constitution Order (CMLA's 1 of 1981)
Art. 9 read with Industrial Relations Ordinance (XXIII of 19691 Ss. 25 A., 36 & 38EmployeeDismissal from Service of Re instatement by Labour CourtOrder of Challenge toPetitioner dismissing respondent for "disobedience amounting to misconduct" in not accepting order of termination of his servicesRespondent challenging such dismissal before Labour Court Labour Court directing reinstatement of respondent with back benefits and «uch order not interfered with even in appealHeld : There being no justi fication for petitioner to have dismissed respondent (No. 1), later not to be debarred to bring grievance petition before Labour Courts Held further : Decisions impugned before High Court being with in jurisdiction of Special Tribunals, exercise of constitutional juris diction not to be called for. [P. 124JC (iii) Industrial dispute -
'Termination of servicesChallenge toAcceptance of dues byemployeeEffect ofEmployer while terminating employee's services handing over dues already earned by himHeld : Employee not to forfeit his right to challenge termination of his service (merely) by acceptance of payment for past service. [P. 123J/4 (if) Industrial Relations Ordinance (XXIII of 1969)- -Ss. 25-A, 36 & 38See : Provisional Constitution Order (CMLA's (1 of 1981)Art. 9. [P. 124]C Sheikh Ezad Masood, Advocate for Petitioner. Date of hearing: 22-12-1984. order The petitioner sent a memo, to its employee respondent No. 1 on 11-2-1982 saying that his services were terminated. Respondent No. 1 did not accept the communication. The petitioner issued a Cbarge- Sheet to the respondent No. 1 saying that he had committed misconduct by refusing to accept the order of termination of his service and on the same ground, the petitioner subsequently dismissed the respondent No. 1 on 28-2-1982. The Account of ihe petitioner prepared a Relieving Report saying that respondent No. 1 has been relieved from service from 1-3-1982 and be has been paid his dues. On this date, viz. 1-3-I9S2, respondent No. 1 signed a printed receipt showing that he had settled his account and there was nothing due to him from the Company. 2. On 21>3-1982, the respondent No. 1 filed an application under Section 25-A of the Industrial Relations Ordinance. 1969 challenging his dismissal from service. The petition was accepted by the learned Punjab Labour Court No. 7 Gujranwala, on 16-11-1983, directing his reinstate ment ith back benefits. The petitioner challenged the order by means of an appeal which has > been dismissed ' by the, learned Punjab Labour Appellate ribunal, Lahore , vide order dated 17-11-1984. Hence, this Constitutional petition. 3. Learned Counsel reiterated on 9-12-1984 the contention raised before the relevant authorities that when a worker receives his dues he is thereafter not entitled to challenge the termination of his service because by the receipt of the dues he ceases to be an "aggrieved person 1 ' within the contemplation of Section 25-A of the Industrial Relations Ordinance, 1969 He contended that it makes no difference if the dues have been received for the past services rendered and the grievance may be against the order of termination of the service. To argue this point, he took an adjournment. Today, the learned counsel has referred to Mirza Majeed Baig and 3 others v. Messrs Futehally Chemicals Ltd., Karachi (1973 P.L.C. ar. 297) as followed in 1981 P.L.C. Karachi 670, 1982 P.L.C. Karachi 652, 1983 P.L.C. Kar. 644 and 1984 PLC Kar. 786. 4. In the main decision in 1973 P. L. C. Karachi 297, rest being derivate, the contention was that the then writ petitioners had precluded themselves from filing a petition under Article 98 of 1962 constitution, as they had by subsequent conduct accepted the decision of the Industrial Court dated 27th June 1968 by receiving all their dues including notice pay, employer's contribution to Provident Fund, Gratuity etc. and the attention of the Court was drawn to the receipts given by the employees writ petitioners "in full and final settlement of their accounts." The learned Judges dealing with the matter held that "now though it may not be strictly correct to say that by accepting the aforesaid payments the petitioners have precluded themselves from filing this petition, it certainly stands to reason that having done so, they cannot be said to be a party aggrieved by the impugned orders within the meaning of the expression used in Article 98 of the late Constitution of 1962." Find'ng that the then writ petitioners had accepted the payments in full and final settlement of their accounts, the writ petition was dismissed Besides that the observation was in relation to writ jurisdiction of the High Court under the Constitu tion and the present contention is in relation to a petition before a special tribunal, it is to bs noticed that'the principle is to be applied to facts of each case. It may be correct that when an employee's services are termi nated and he accepts all his dues in final settlement of the dispute between him and his employer and virtually says good-bye to his employer, he accepts the termination of his service and having done so he would not be entitled to challenge the same subsequently because having parted company with consent and grace, he cannot turn round and repudiate what he had earlier done. However, it will be entirely different if an employee's services are terminated and he is handed out the dues which he had earned while serving. He has the right to accept the payment as he had served. By acceptance of payment for the past service he does not forfeit his right to challenge the termination of his service. In the case in hand, the dispute is between the employer and the employee. The employer cannot say that if he terminates the services of his employee, the latter cannot even accepl the payment for the period during which he had served the employer and if he does that, he gives up his right to challange the termination of the service. The acceptance of the money for the period during which the employee had served, he was entitled to and by the acceptance thereofe B he cannot be presumed to have accepted the termination of his service, as well so as to debar him from challenging the same before a competents Court or tribunal. The relevant law deals with the grievances and rights or the employees-wotkers. They cannot be expected that when their sei vices are terminated, they should either not accept the money for the period for which they had rendered services, or, they will be debarred to challenge the order of termination of their services because a worker ex facie would be needing the money for his daily livelihood. It would be too much to presume that a worker can forego his wages for service rendered and carry on a Litigation against termination of his services. In the case in hand, the two documents relied upon bv the petitioner are Annexures 'E' and 'F 1 , Annexure'E' is the report prepared by the Accountant of the petitioner relieving the respondent No. 1. What an employer does in his office, that will obviously not create a disadvantage for the employee. As regards Annexure 'F', about which the learned counsel for the petitioner states that by signing this, the respondent No. 1 has settled his accounts and said that 4. In the main decision in 1973 P. L. C. Karachi 297, rest being derivate, the contention was that the then writ petitioners had precluded themselves from filing a petition under Article 98 of 1962 constitution, as they had by subsequent conduct accepted the decision of the Industrial Court dated 27th June 1968 by receiving all their dues including notice pay, employer's contribution to Provident Fund, Gratuity etc. and the attention of the Court was drawn to the receipts given by the employees writ petitioners "in full and final settlement of their accounts." The learned Judges dealing with the matter held that "now though it may not be strictly correct to say that by accepting the aforesaid payments the petitioners have precluded themselves from filing this petition, it certainly stands to reason that having done so, they cannot be said to be a party aggrieved by the impugned orders within the meaning of the expression used in Article 98 of the late Constitution of 1962." Find : ng that the then writ petitioners had accepted the payments in full and final settlement of their accounts, the writ petition was dismissed Besides that the observation was in relation to writ jurisdiction of the High Court under the Constitu tion and the present contention is in relation to a petition before a special tribunal, it is to bs noticed that the principle is (o be applied to facts of each case. It may be correct that when an employee's services are termi nated and he accepts all his dues in final settlement of the dispute between him and his employer and virtually says good-bye to his employer, he accepts the termination of his service and having done so he would not be entitled to challenge the same subsequently because having parted company with consent and grace, he cannot turn round and repudiate what he had earlier done. However, it will be entirely different if an employee's services are terminated and he is handed out the dues which he had earned while serving. He has the right to accept the payment as he had served. By acceptance of payment for the past service he does not forfeit his right to challenge the termination of his service. In the case in hand, the dispute is between the employer and the employee. The employer cannot say that if he terminates the services of his employee, the latter cannot even accept the payment for the period during which he had served the employer and if he does that, he gives up his right to challange the termination of the service. The acceptance of the money for the period during which the employee had served, he was entitled to and by the acceptance thereofe B he cannot be presumed to have accepted the termination of his service, as well so as to debar him from challenging the same before a competents Court or tribunal. The relevant law deals with the grievances and rights or the employees-wot kers. They cannot be expected that when their set vices are terminated, they should either not accept the money for the period for which they had rendered; services, or, they will be debarred to challenge the order of termination of their services because a worker ex facie would be needing the money for his daily livelihood. It would be too much to presume that a worker can forego his wages for service rendered and carry on a litigation against termination of his services. In the case in hand, the two documents relied upon bv the petitioner are Annexures 'E' and 'F', Annexure 'E' is the report prepared by the Accountant of the petitioner relieving the respondent No. 1. What an employer does in his office, that will obviously not create a disadvantage for the employee. As regards Annexure 'F', about which the learned counsel for the petitioner states that by signing this, the respondent No. 1 has settled his accounts and said that there was nothing due to him from his employer and that amounts to acceptance of dismissal, thereby debarring him from petitioning the Labour Courts against the order of dismissal, the following facts may be noted : Firstly, it is a printed receipt prepared by the petitioner on which the respondent No. 1's signatures are affixed. The learned appellate Tribunal has said that the document does not show the details of the payments made and, therefore, does not operate as estoppel. He is quite right. Secondly, this document by no means gives an impression or idea that the respondent No. 1 had accepted the fact of his dismissal from service or its validity. Further, if it be recapitulated for what reasons the respondent No. 1 was dismissed, it will be recalled that the petitioner had dismissed him for not accepting the order of termination of his service, by saying that it was disobedience amounting to misconduct. It is like saying that if an employer issues an order to an employee to cut his throat and the latter refuses to accept the order, it will amount to that the employee had disobeyed the order and therefore, committed misconduct and consequently liable to be dismissed from service. This will be perversity of the highest order. In the circumstances of the case ai given above, there was no justification for the petitioner to have dismissed the respondent No. I and the latter was not debarred to bring his grievance before the Labour Courts under Section 25-A of the Industrial Relations Ordinance, 1169. The decisions impugned in this petition were within the jurisdiction of the special Tribunals and cannot be said to be without lawful authority and of no legal effect. Exercise of Constitutional jurisdiction is not called for at all. The petition is totally without merit or force. It is, accordingly, dismissed in If mine. (TQM) Petition dismisied.
PLJ 1985 Lahore 124 PLJ 1985 Lahore 124 Prtsent: ch. amjad khan, J ABDUL REHMAN a/ta/BHlKU and AnotherPetitioners versus MUKHTAR AHMAD and AnotherRespondents Civil Revision No. 1237/84, decided on 25-9-1984. (i) Civil Procedure Code (Vof 1908)- Ss. 115 & 96 read with Limitation Act (IX of 1908)Ss. 3 & 5 Time-barred appeal Decision on merits ofTime-barred appeal before District Judge not accompanied by any application for condo nation of delayHeld : Consideration of such appeal on merits being not lawful, grievance of petitioners that courts below misread evi dence not to be entertained. [P. 125]<4 (ii) Linitation Act (IX of 1908)-
Ss.. 3 & 5 read with Civil Procedure Code (V of 1908)O. XLI, R. 1AppealDelay in filing copy of decree ofCondonation of Copy of impugned decree not filed until after expiry of limitation Held : Appeal to be barred by timeNo prayer for condonation of delay made at allHeld : Question of excusing delay not to arise in caie. [P. 126]C 8 PWR 1911 & 1980 CLC 530 re/. (Hi) Limitation Act (IX of 1908) S. 5DelayCondonation ofApplication for Held : Submis sion of formal application under S. 5 of Limitation Act being essential for enabling court to condone delay in filing appeal, in absence of such application delay not to be excused by resort even to inherent powers saved under S. 151, Civil Procedure Code (V of 1908). [P. 126]B , AIR 1926 Lah. 135 ; AIR 1929 All. 485 & ATR 1940 Lah. 314 rtf. (iv) Civil Procedure Code (V of 1908)
O. XLI, R. 1 See : Limitation Act (IX of 1908)-Ss. 3 & 5. [P. 126JC (v) Limitation Act (IX of 1908)
Ss. 3 & 5See : Civil Procedure Code (V of 1908)Si. 115 & 96. [P. 125]^ Ch. Muhammad Yameen, Advocate for Petitioner. Date of hearing : 25-9-1984. order A civil suit against the petitioners having been decreed by the trial Court on 6-12-1983, they filed an appeal in the Court of the District Judge, Sargodha on 17-12-1983 whereto they appended only a copy of the judg ment and not a copy of the trial Court's decree which was produced only on 12-4 1984, when the limitation for filing the appeal had already expired. The aspect of the matter was examined by the learned District Judge in paragraphs 7 to il of his judgment and he concluded that the Appeal had become hopelessly time-barred. 2. With the above findings the appeal should have been dismissed under section 3 of the Limitation Act but still the learned District Judge proceeded to dwell upon the merits of the case and in his lengthy judgment he devoted thereto another 4 paragraphs, which again start ith number 11. A justification for the course adopted by him is difficult to find and it is beyond comprehension as to why may he have failed to per form he duty enjoined by law. 3. Since the appeal of the petitioners in the District Court was barred by time and was not accompanied by an application under section S of he Limitation Act to enable the condonation of delay therefore, neither can the consideration of the merits of the case by the learned District Judge be regarded lawful nor can the grievance of the petitioners to the effect that the evidence in the case has been misread by the Courts below, be entertained in this revision petition. 4. Learned counsel for the petitioners has, however, submitted that the defect in their appeal was not pointed out by the office of the District Judge ho entertained it without any objection and has relied on Htji Jehanzcb i. Khalid Khan and another (PLD 1983 Peshawar 215) to contend that he delay in completing the appeal deserved to be condoned for the foregoing reason. The case relied upon by the learned counsel is clearly distinguishable as it proceedsjupon its own facts because therein an applica tion was in fact filed for condonation of the delay under section 5 of the Limitation Act which, even though not adverted to by the appellate Court, came to be accepted by the High Court in the civil revision for the reason of the omission by the office to take timely objection. This case cannot be a precedent for holding that delay can be excused in similar cases even with out any application made for the purpose. It is well settled that sub mission of a formal application under section 5 of the Limitation Act is B essential for enabling a court to, if at all, condone the delay in riling an appeal and in the absence of such application there can be no power to condone the delay which cannot be excused by resort even to the inherent powers saved under section 151 of the C. P. C. Reference in this behalf may be made to Kundan Lal-Mukandi Lai v. Kanshi Ram and another (A.I.R. 1926 Lahore 135) and to Baldeo Prasad Sbukul v. Sokhdeo Prasad Shukul (A.I R. 1929 Allahabad 485). Moreover, it was held in Shangara Singh and others v. Imam Din and others (A.I.R. 1940 Lahore 314), that an application under section 5 ibid can be filed only at the stage of institution of the appeal but not in an already pending appeal. Since in the case in band a prayer for condonation of delay was not made at all therefore, there could not arise any question of excusing the delay. A copy of the C impugned decree not having been riled until after the expiry of limita tion, the learned District Judge has, as held in Mnssammat Masum Begum v. Madan Mohan Lall and others (8 Punjab Weekly Reporter 1911) and ImamGulv. Mst Begum Ji (1980 CL.C 530-S.C., A.J.K.), rightly con cluded that the appeal was barred by time. 5. This revision petition missed in limint. (TQM) being without substance is accordingly dis- Petition dismissed.
PLJ 1985 Lahore 126 PLJ 1985 Lahore 126 [Rawalpindi Bench] Present: akhtar hassan, J BUDHA KHAN-Appellant versui GHULAM MUSTAFARespondent Regular Second Appeal No. 651 of 1967, decided on 27-11-1984. (i) Punjab Pre-emption Act (I of 1913)
S. 22 read with Civft Procedure Code (V of 1908)-S. 149 Zarii-Pan jam Deposit ofExtension of time forGround forHeld : Extension not to be claimed as of right and -some plausible reason to be shown - Statutory requirement of making deposit not observed meticulouslyHeld : No indulgence to be shown to pre-emptor in uch context. [Pp. 127 & l2t]A & B (ii) Civil Procedure Code (V of 1908)
S. 149 See : Punjab Pre-emption Act (I of 1913) S. 22. [Pp. 127 &. n%]A & B Malik Muhammad Ja'afar, Advocate for Appellant. Ch. Munir Ahmad, Advocate for Respondent. Date of hearing : 27-11-1984. This R. S. A. impugns a decree dated 20-6-1967 of the learned District Judge, Rawalpindi, whereby he dismissed the pre-emptor/appellant's first appeal on the ground that he had failed to make the deposit of l/5th Zar-i-Panjum within tne time originally specified by the trial Court and that the extension therein allowed on an application made on his behalf by the counsel without disclosing any sufficient reason wa arbitrary. 2. The trial Court had directed that the l/5th pre-emption amount be deposited before 3-3-1964. Admittedly, the appellant did not make the deposit and his counsel in his absence presented an application on that date itself, and not earlier, praying for extension on the ground that it was ot known to him if the deposit had in fact been made as he had no instructions. The trial Court allowed the extension uptil 6-3-1964, of course, ithout notice to the opposite party. However, his suit was dis missed by it on the ground that he did not enjoy any better right of pre emption against he vendee. In appeal though the findings on the point of pre-emption were reversed by the learned District Judge, yet, he took note of the fact that the xtension allowed for the deposit of l/5th amount was capricious and arbitrary. He accordingly dismissed the appeal on that score. 3. Malik Muhammad Ja'afar for the appellant stressed that the record did not show if at all the deposit of l/5th had not been made before the date originally fixed i e. 3-3-1964. He was of the view that there was possibility of having made the deposit before the terminal date. He pointed out that the proceedings did disclose that a receipt was shown to the trial Court on 7-3-1964 and concluded therefrom that presumably the deposit was made within the time originally fixed. 4. I am afraid if this were so, the learned District Judge or at least the trial Court wherever the said receipt was produced, would have taken note f he date of the deposit. If indeed it had bejn made in time, the appellant, or for that matter his counsel, would have agitated the same before the earned District Judge rather than to have suffered an order for this omission against him. To all appearances, the deposit was not made within the ime originally fixed. 5. Speaking of the extension, learned counsel submitted that it could have been allowed even suo motu as well without notice to the opposite side ecause the idea was to secure this deposit against any possible costs to be determined later. According to him, there was enough power available to the Court under section 22 of the Punjab Pre-emption Act as also the Civil Procedure Code. That may be true but the extensionl could ot be claimed as of right. Some plausible reason had to be shown.! The application made by the counsel in the absence of the appellant was! rather mprecise if not loose. There were no instructions given to the counsel as to why after all the appellant did not appear or did not make the deposit, or hat he should seek extension stating some tangible reason. The application was, therefore, made just to grope in the dark and so was the order made y the trial Court without applying mind in an objective ner. Although one may differ with the view that the right [predatory as the trend has now changed, yet the statutory requirement of '(making the deposit was not observed meticulously and no indulgence could (be shown to the pre-emptor in that context. 6. I fully agree with the learned District Judge and dismiss this appeal leaving the parties to bear their own costs. (MIQ) Appeal dismissed
PLJ 1985 Lahore 145 [BaHawalpur Bench] PLJ 1985 Lahore 145 [BaHawalpur Bench] Present: muhammad sharif, J GHULAM SARWARPetitioner versus BOARD OF INTERMEDIATE & SECONDARY EDUCATION, Bahawalpur through its Chairman and AnotherRespondents Writ Petition No. 488-84/BWP heard on 22-12-1984. (i) Provisional Constitution Order (CMLA's 1 of 1981) Art. 9 read with Punjab Board of Intermediate & Secondary Education Act (XIII of 1970)Ss. 10 & 21 and Board of Intermediate & Secondary Education Bahawalpur CalendarCh. 11, R. 9 Exami nationApplication form forRejection ofOrder of Challenge toIncharge Examination Section (and not Controller of Exami-nation) rejecting petitioner's application form on ground that under new scheme of studies, science student not to be eligible to appear privately^Such Incharge not shown to be empowered to cancel form nor Controller (even) delegating him such authority Notification relied upon by Incharge also inconsistent with rules competently made by Board Held : Impugned order being ultra vires to be quashed. [P. 14«]C , (ii) Punjab Boards of Intermediate & Secondary Education Act (XIII of 1970)
Ss. 10 & 21BoardPower ofNotification inconsistent with rules Effect ofNotification inconsistent with rules issued by Board Held : Rules made by Board having force of law, such notification not to be acted upon. [P. 148]S (Hi) Punjab Boards of Intermediate & Secondary Education Act (XIII of 1970) - Ss. 10 & 21BoardPowers ofHeld : Board to have power to regulate and decide all administrative matters and to lay down con ditions for admission to its examination to determine eligibility of candidates and to admit them to such examination Held farther : Board also to be competent to make rules consistent with Act and regulations to provide for conditions for admission to examination held by it and eligibilhty (of examinees) for diplomas, certificates and titles. [P. W[A Mr. M M. Bhatti, Advocate for Petitioner. 5A. Masood Ashraf, Advocate for Respondent. Date of hearing : 22-12-1984. judgment Ghulam Sarwar, the petitioner, has filed this constitutional petition under Article 9 of the Provisional Constitution Order, 1981 for a declaration to the effect that the order dated 1-10-1984 passed by the Controller of Examination, Bahawalpur be declared without lawful authority and of no legal effect. 2. The relevant facts of this case are that the petitioner appeared in the F. Sc., Pre-Medical Group Examination held in Spring, 1984. He appeared in the subject of Chemistry and failed. He submitted another form for appearing in the subsequent examination and his form as rejected on the ground that under the new Scheme of studies, a science group student was not eligible to appear privately. The etitioner has challenged the said order by stating that he could avail of four chances within a period of 25 months and could not be debarred from aking his intermediate science group examination under the rules. 3. The respondents have filed the written statement and they relay on Rule 9 of Chapter II of the Rules Part of the Board Calendar which is as follows : (1) "To qualify for the grant of the Intermediate Certificate a candi B ate shall be provided with a maximum of four consecutive opportunities within a period of 25 months. Provided the twenty five months in which a candidate must avail of the four chances to pass an examination in parts will commence from and include the examination in which a candidate appears for the first time. (2) If a candidate fails to qualify the examination in the first, second or third attempt, he shall be granted exemption in the subject/subjects in ~%hich he has passed in an attempt or attempts, and allowed to re-appear in the subsequent attempt In the subject/subjects in which he has failed. Such a candidate on qualifying the examination shall be granted a certificate of having passed the examination "by parts". (3) No additional examination opportunity shall be provided in lieu of an opportunity missed for any reason (4) A candidate who fails to qualify the examination in the period of 25 months i.e , four consecutive attemps, may repeat the examination as a fresh candidate, in any combination of subjects. (5) A candidate who is blind or deaf and dumb may qualify the ""\? examination without any restriction to the number of examination pportunities/attempts referred to above and" they will be exempted from reappearing in the paper/s in which they have once passed. (6) (o) A candidate who appeared but failed in one or more subjects will be eligible to reappear in the same subjects only unless he appears as a fresh candidate (full combination) in any subsequent examination. (3) Change of subject/s in deserving cases may be allowed by the Controller of Examinations within the same Group. (7) (o) A candidate who has failed to appear in one or more than one subjects of an examination, shall be treated to have failed to secure pass marks in the subject/subjects. (b) A candidate who failed to appear as a whole, he will be treated absent from the examination and no Result Card will be issued. (8) A candidate accepted for an Annual Examination who remained absent throughout the examination will be permitted to appear in the next examination in all the subjects on submission of fresh form and fee." 4. The learned counsel for the petitioner has also relied on Rule 9 ibid and has contended that the petitioner should have been permitted four chances to clear the examination, but only one chance has been provided to him and his application form was rejected when he endeavoured to appear for the second time. 5. Respondent No. 1 has issued notification dated 23-11-1984 Annexure 'D' which envisages that from Spring 1984 Examination, no private candidate or the science group student shall appear as a fresh candi date. It has further been added that those candidates whose chances remain intact under the Rules, shall be eligible for taking further exami nation and when those chances are exhausted, then a candidate of the science roup shall not be eligible to take the examination afresh. With reference to the said notification the learned counsel for the petitioner has contended that he candidates who could avail of further chances, had been excepted from the said rule and the interpretation adopted by the Departme'nt is not inding on the law courts. It may be noted that the said notification has two parts : (f) firstly, it debars a candidate of pre-engineering/pre-medical group to appear privately as a fresh candidate from Spring 1984 Intermediate Examinations and to those candidates who have not (//) secondly it extends a concession exhausted their four chances. 6. The case of theetitioner is covered by the first part of this noti fication and the construction adopted by the respondents must be endorsed But it may be noted that the Board of Intermediate & Secondary Education, Bahawalpur (which shall hereinafter be referred to as the Board) has the power to regulate and decide all administrative matters and can lay down conditions for admission to its examination to determine the eligibility of the candidates and to admit them to such examination as embodied in section 10 of the Punjab Boards of Intermediate & Secondary Education Act, 1976. In section 21 of the said Act, it has been provided that the Board may make rule consistent with this Act and the regulations to provide for conditions for admission to the examination held by it and their eligi bility for diplomas, certificates and titles. 7. Undoubtedly the Board weilds rule making power and under the said Act, it has framed Rule 9 reproduced above which covers the case of the andidates of the science group as well as of the arts group. Para . 1 of Rule 9 ibid is very clear in its terms which provides a maximum of four consecutive opportunities to a candidate within a period of 25 months to pass the examination and the four chances include the examination in which a andidate appears for the first time. Para . 2 deals with the exemption of subjects in which a candidate passes. Para . 4 clarifies that after making four onsecutive attempts, a candidate may repeat the examination as a fresh candidate in any combination of subjects. In short Rule 9 grants a concession to avail of " four consecutive chances within a period of 25 months. The Board has the power to enforce such rules. But it may J he pointed out that Rule 9 is in existence and a new notification has been irought forth when Rule 9 ib id has not yet been modified or repealed. "he ules carry the force of law and the notification Annexure 'D' is inonsistent with Rule 9 given above. This notification, therefore, cannot be acted pon. 8. Furthermore, it may be stated that the application form of the petitioner was rejected by one Muhammad Akram, Incharge xamination Section and not by the Controller Examination. It has not been shown to e that Muhammad Akram, Incharge Examination Section was mpowered to cancel th e form of the petitioner or the Controller Examination had delegated him such authority. The impugned order dated 1-10- 984 s, therefore, ultra vires and based upon a notification which is inconsistent with rule 9 reproduced supra. I, therefore, accept this writ petition and quash the impugned order. The petitioner has taken the intermediate Examination and he is entitled to get his result card from the Board.t Due to he legal complexities involved in this petition, the costs shall not fo How the event and I leave the parties to bear their own costs. (TQM) Petition accepted.
PLJ 1985 Lahore 148 PLJ 1985 Lahore 148 Present : Gut zarin kiani, J SALAHUDDINPetitioner versus
PUNJAB PUBLIC'SERVICE COMMISSION through its Chairman and AnotherRespondents Writ Petition No. 4248/84, decided on 12-2-1985. Provisional Constitution Order (CMLA'i 1 of 1981) Art. 9Public Service CommissionDiscretion in award of grace marksExercise ofWrit jurisdictionInterference in Held: Consti tutional jurisdiction not to be available to compel authority to exercise discretion vesting in itPetitioner having no vested justiciable legal right commanding Commission to award grace marksHeld : Writ petition to disclose no serious merits. [P. 150]^4 & B Ch. Faxal-i-Hiusain, Advocate for Petitioner. Mr. S. M. Zubair, A.A.G. on Court Notice. £»«t» of hearing : 122-1985. order Petitioner under Roll No. 1647, appeared in a Competitive Examina tion held by Government of Punjab for recruitment to the posts of S.O./E.A.C./A.D. held in the month of May/June, 1984, Petitioner, succeeded in obtaining requisite marks in the aggregate but failed in getting pass marks in two papers i e. English and Urdu Essay and fell short by 2£ and 1^ marks in these two papers. In consequence, Secretary, Public Service Commission vide its letter annexed 'A' informed the peti tioner-candidate, that he had failed to qualify in the written portion of the examination, therefore, he was not entitled to be called for viva voce and psychological tests. Relying on Notification dated 11-1-1984 as amended upto date, giving discretion to award 5 grace marks "to really deserving candidates in one or two papers", Petitioner has brought his grievance before this Court in its extraordinary constitutional jurisdiction, for issue of an appropriate writ or direction, directing Punjab Public Service Com mission to consider and award grace marks to the writ petitioner so as to enable him to qualify for viva voce and psychological tests. Report, under the signatures of Secretary, Public Service Commission, Lah6re has been received and placed on file. Learned counsel, appearing for the parties have been heard. Petitioner's learned counsel strenuously urged that when a power to award 5 grace marks to "really deserving candidates" had been conferred on the Commission, the power was given and meant to- be exercised by it keeping in view the facts and circumstances of each case. Refusal to exercise discretion vested in the Commission, could not be justified. He stated that when a power is given to an authority, then, the authority in whom the power vests, cannot refuse to exercise it. Learned counsel stated that exercise of discretion, though could not be regulated by this Court, yet a writ could be issued to the Commission, directing it, to perform its functions and exercise its discretion. May be, the petitioner in the opinion of the Commission could not qualify to be "a really deserving candidate" yet, the petitioner was entitled to consideration of his case on merits by the Commission. 2. Learned Assistant Advocate General, who appeared in response to a notice, to assist the Court at liming stage, has contended that, per report, the case of the petitioner alongwith others was considered by the Commis sion for grant of grace marks and it was decided not to award gjace marks to any candidate as permissible under the rules. Matter relating to award of grace marks, lay in the discretion of the Commission and this Court in exercise of its constitutional jurisdiction, could not legitimately bind down the Commission to exercise its discretion in a particular manner. It was for the Commission alone, to judge for itself as to whether a particular candidate, qualified for grace marks. This, in the absence of any criteria laid down in the rules, was a matter which rested in the judgment of commission not correctible in constitutional jurisdiction. He has also referred to a decision in Writ Petition No. 41 of 1984 "Malik Muhammad Razaq Tiwana v. Punjab Public Service Commission" wherein on a similar question raised before this Court, my learned brother Muhammad Afial Lone, J., observed : "The grievance brought by the petitioner before this Court is that Notification dated 27-4-1982 embodies a recital that the candidates who failed to qualify in one or two papers, may be given $ gr marks by the Commission. The petitioner's case is that there was short fall only 2 marks in the Punjabi Essay and as otherwise, he was fairly high in the merit list maintained on the basis of the written test, 2 grace marks should have been allocated to him to enable him to qualify for appearance in the interview. It is discernible from the Notification relied upon by the peti tioner that grant of grace marks has been left to the discretion of the Commissibn. It has also been admitted at the bar that the concession as to the grant of 2 grace marks was not extended by the Commission to any other candidate. It is quite obvious that the petitioner has no justiceable right, violation whereof may be challenged through invocation of writ jurisdiction. Dismissed in limine." 3. Having considered the matter thoroughly in the light of the contentions raised at the bar and the rules referred to, I find myself unable to agree with the petitioner's counsel that interference in constitutional juris diction in the circumstances of the case, could be made. Petitioner, has failed to get 33 per cent marks in each individual paper. Punjab Public Service Commission, respondent No. 1 herein, considered the case of the petitioner and decided, in its judgment not to grant grace marks to any candidate. Report shows that this practice has been adopted by the Com mission in respect of candidates appearing in other examination also. Question faHing for decision in the present constitutional petition is whether, Commission, could be compelled to exercise its discretionary power in favour of a particular candidate who had failed to obtain the requisite pass marks in individual papers necessary for vivavoce and psychological tests. As observed, Commission was empowered to award 5 grace marks to really deserving candidates. As to who is really deserving candidate was for the Commission to decide. In the judgment which vested, in the Commission, it decided not to exercise discretion in favour of the petitioner like many others similarly placed. In the absence of any criteria determining the eligibility for grace marks the Commission, has decided not to award grace marks as a matter of principle Constitu tional jurisdiction, may not be available to compel an authority to exercise a discretion vesting in it unless it was under a clear duty to exercise it, even so, the authority is only commanded to face upto its duty and the order will leave the Authority a& free as before to decide for itself, in the matter of exercise of its discretion. 4. In view of the above I find myself in respectful agreement with the view of ray learned brother Muhammad Afzal Lone, J., and I hold that the petitioner had no vested justiceable legal right commanding the commission to award grace marks, violation of which right, could be enforced through writ jurisdiction. Petition, in these circumstances no serious merit and is dismissed in limine. (MIQ) Petition dismissed.
PL J 1985 Lahore 160 PL J 1985 Lahore 160 Present : zia mahmood mirza, J MUHAMMAD ASIF-Petitioner versus NOOR AHMAD and 7 OthersRespondents Writ Petition No. 3432/1984, heard on 16-10-1984. (i) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959) -
S. 13 (3) (a) (ii)Eviction -Personal needGround ofOccupa tion of another shop in same areaFailure to mention fact ofEffect of andlords not mentioning fact of their owning or occupying another shop in same urban area in ejectment application filed by themHeld : Such mission per se not to be fatalCase being that of inadvertent omission, no deliberate suppression proved in record Held : No adverse inference to e rawn from mere omission. [P. 16iM (ii) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)
S. 13 (3) (a) (ii)EvictionPersonal needGround ofLand lord Bona fide ofLandlords and witnesses readily deposing regarding landlords aving another shop in same urban areaHeld : Omission to plead such fact in ejectment application not to reflect adversely on bona fides of landlords' equirement. [P. 163JB (iii) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959) S. 13 (3) (a) (ii)EvictionPersonal needGround ofLandlord Bona fides ofSmall shop owned by landlords since 1947 not sufficient for their needsHeld : Mere omission to plead in ejectment application that landlords owned another shop not to seal fate of their case. [P. 163]C (iv) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)
Ss. 13 (3) (a) (ii) & 15 read with Provisional Constitution Order (CMLA's 1 of 1981)Art. 9EvictionPersonal useGround of Landlords Bona fide of Finding on Challenge toIssue of bona fide requirement standing concluded by concurrent findings of Rent Controller and District Judge after consideration of evidence on recordHeld : Such issue of bona fide requirement of landlord not to be open to question in constitutional jurisdiction. [P. 164]0 (iv) Provisional Constitution Order (CMLA's 1 of 1981)
Art. 9See : Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)-Ss. 13 (3) (a) (ii) & 15. [P. 164]/> Mr. Riyasal AH, Advocate for Petitioner. Mr. S. M. Tayyab, Advocate for Respondents No. 1 to 3. Ntmo for other Respondents. Dates of hearing : 15 & 16-10-1984. judgment onstitutional petition has been filed to call in question order of the District Judge, Sargodha dated 21-4-1984 whereby he upheld the order of the Rentontroller directing the ejectment of the petitioner. 2. Facts necessary for the disposal of this petition briefly stated, are that originally respondents No. I to 3 (hereinafter called the landlords) filed a petition under section 13 of the Urban Rent Restriction Ordinance, 1959 seeking the ejectment of Muhammad Sharif from the shop in dispute on the grounds of default in the payment of rent, bona fide requirement for per sonal use, subletting and damage to the property. Muhammad Sharif died during the pendency of the ejectment petition. His sons, respondents No. 4 to 6 herein were, therefore, brought on the record. 3. Muhammad Asif present petitioner moved an application before the earned Rent Controller contending therein that his late father Muhammad Boota was a tenant of the shop in dispute under the original owners who had sold it to the landlords and that respondents No. 4 to 6 had never been in ossession of the shop in dispute as tenants. This application was allowed by the learned Rent Controller and the petitioner was impleaded as a res pondent in the ejectment petition. Respondents No. 4 to 6 were proceeded ix-parte and the ejectment petition was contested by the present petitioner who, in his reply, controverted all the allegations made by the landlords. Pleadings of the parties gave rise to the following issues : "1. Whether the respondent has committed default in the payment of rent?OPA. 2. Whether the disputed shop has been sublet ? OPA. 3. Whether the petitioners require the disputed property for personal use in good faith ? OPA. 4. Whether the disputed shop has been damaged ? OPA. 5. Relief". 4. Learned Rent Controller found issue relating to the bona fide requirement in favour of the respondents/landlords, though decided ther issues against them. In view of the finding on issue regarding the personal need, learned Rent Controller by his order dated 27-7-1983, allowed he ejectment petition and directed the petitioner to hand over vacant possession of the shop in dispute to the landlords. Petitioner took an appeal against the aforesaid order but without any success and the same was dismissed by the learned District Judge, Sargodha by his order dated 21-4-1984. Hence this petition. Learned counsel for the petitioner has assailed the impugned orders of ejectment mainly on the ground that the landlords did not sclose in the eviction petition that they owned and occupied another shop in the same urban area in which the shop in dispute is ituated. This non-disclosure, according to the learned counsel, seriously reflected upon the bona fides of the landlords qua their lleged personal need. In support of his submission, learned counsel has relied upon Abdul Majid v. Umar Ali (1983 C. L. C. Malik Mubammad Ramzam v. M/S. General Iron Store etc. (N. L. R. 1984 Civil 4). Learned counsel also placed reliance on Nasim Shah v. Mohammad AH Batabi (1984 C. L C. 3157) to contend that a fact not alleged in the pleadings could not be allowed to be proved. 6. Learned counsel appearing for the landlords, on the other hand, argued that the omission of the landlords to disclose in the ejectment petition that they owned and occipied another shop was inadvertent and not wilful and they readily disclosed this fact in their evidence. He has parti cularly referred to the statement of Zaheer Ahmad one of the landlords, who appearing as PW 6 deposed in examination-in-chief that they had another mall shop which was insi fficient for their needs. He also pointed out that Muhammad Shabbir FW 2 and Mehbocb Khan FW 3 appearing as itnesses for the landlords readily admitted that the landlords had another shop in which all of them were working. Learned counsel as, therefore, argued that the judgments relied upon by the learned counsel for the petitioner are distinguishable because in these cases, it was held hat the landlords has deliberately tried to suppress the fact of their having owned other premises in the same urban area. Learned counsel for the landlords further contended that the omission aforementioned would not by itself be fatal to the case of the landlords as they were not required to specifically plead all the ingredients of section 13 of Rent Restriction Ordinance. In support this contention, learned counsel has referred to Zaboor did v. Mirza Ayub Baig (1981 S. C. M. R. 1081) and Muhammad Ibrahim v. Faqir Mohammad (1982 C. L. C. 230). 7. I have carefully considered the contentions of the learned counsel for the parties and have also examined the evidence which has been placed on the present record Only question which requires consideration in this case is as to whether the omission of the landlords to specifically plead in the jectment petition that they had another shop in the same urban area was so serious as to reflect upon their bona fides. It is, no doubt, true that the andlords did not mention in the ejectment petition that they owned and/ or occupied another shop in the same urban area but this omission per se would ot be fatal to their case. It is quite clear from the landlords' evi dence referred to above that it was a case of inadvertent omission and notof deliberate uppression. No adverse inference can, therefore, be drawn from the mere omission pointed out by the learned counsel for the peti tioner. I have gone hroigh the cases cited by the learned counsel for thepetitioner. As submitted by the learned counsel for the respondent, those cases are distinguishable. n 1983 C. L. C. 2-511, landlords owned a house and another shop in his occupation but he did not mention this fact in his application for ejectment. Not nly this when appearing as a witness, he deposed "that he had no other shop in the vicinity than the one in dispute but in cross-examination he admitted hat he owned another shop and a house adjacent to the one in dispute". It was in view of this conduct of thelandlord that it was held that "this deliberate nd inexcusable omission in the pleading tells upon the bona fides of the respondent in needing the shop in dispute". In P. L. J. 1983 Lahore 488, the andlord did not disclose either in his ejectment application or in his statement in Court that there were two other shops in his possession at the time of the nstitution of the case. It was, therefore, held that the need of the landlord was not bona fide insofar as in the eviction application as well as in his vidence, he had suppressed the fact that he was also in occupation of other business premises. Similarly, in N. L. R. 1984 Civil 4, it was noted that the landlord had suppressed the material fact that he was the owner of other commercial premises. This fact was only brought out by the tenant in the cross-examination of the landlord and his witnesses. In all these cases, suppression of the material fact was found to be deliberate and wilful and therefore, it was held that it reflected adversely on the bona fides of the claim of the landlord. In the present case, as shown above, landlords and his witnesses readilyi deposed that the landlords had another shop. Omission to plead this factL in the ejectment application cannot, therefore, be said to be a case of wilf 11 suppression so "as to reflect adversely on the bona fides of the landlords'! requirement. 8. Even otherwise, question of bona fide requirement of the landlords is to be examined in the context of all the relevant facts and circumstances on the record. In the present case, evidence was led to prove that the land lords required the shop in dispute for their personal use as the other shop in their possession in which all the three brothers viz. landlords have been doing their business since 1947 was a small shop which was not sufficient for heir needs as their sons have also grown-up. In these circumstances, also, mere omission to plead in the ejectment application that the landlord owned another shop would not seal the fate of their case. 9. As regards the requirement of the landlords, two Courts of compe tent jurisdiction have found that they needed the shop in dispute for their personal use The findings, as may be seen hereunder, were recorded after appraisal of all the relevant evidence on the record. Finding given by the learned Rent Controller is as follows : "The witnesses of the petitioner have stated that all the petitioners are having one shop which is not sufficient for their need. In rebuttal there is mere denial of respondent. He has not explained that how petitioners do not require the suit shop for their personal need. All the three brothers are working in their presently occupied shop since 1947. The petitioners have purchased the disputed shop for their personal need They wanted to start their business in new shop also as their family has become large and present shop does not fulfil their requirement. The respondent has not established this fact that the petitioners are having more than one shop. The personal need of the petitioners is established." The aforementioned finding of the Rent Controller has been affirmed by the learned District Judge in the following terms : "All the witnesses of the respondents had stated that they were having one shop which was not sufficient for their need. In rebut tal there was mere denial of the appellant. He had not explained that respondents No. I to 3 did not require the shop in dispute for their personal use. All the three brothers were working in the presently occupied shop since 1947. Their family had grown-up and they had purchased the disputed shop for their personal need. They wanted to start business there as their family had also enlarg ed and the present shop did not fulfil their requirements. There is no doubt that respondents No. 1 to 3 were occupying another shop since 1947 in which all the three brothers were working together and that shop was not sufficient for their need as their family had been spread and expanded". 9. Thus the requirement of the premises in dispute for bona fides use of the landlords being an issue of fact stood concluded by concurrent find ings recorded by the learned Rent Controller and the learned District Judge D after due consideration of evidence on the record. That being so, issue of bona fide requirement of the landlords is not open to question in Constitu tional jurisdiction. For the foregoing reasons, I find no merit in this petition which is dis missed with costs. (K.M.S.) Petition dismissed.
PLJ 1985 Lahore 164 PLJ 1985 Lahore 164 Present: gul zarin kiani, J RIAZPetitioner virtus Mst, ZAINAB BIBI & AnotherRespondents Writ Petition No. 5319 of 1984, heard on 18-2-1985 (i) Family Court Act (W. P. Act XXXV of 1964) -Ss. 5 & 14 read with Provisional Constitution Order (CMLA's I of 1981)Art. 9Jactitation of marriage Suit for Decision on Challenge to Appeal Maintainability of Petitioner's appeal against decree in suit for jactitation of marriage dismissed on ground of its non-maintainability under section 14 (2) of ActLower Court treating suit for jactitation as suit for dissolution of marriage and thus misconstruing provisions of ActNo bar in Section 14(1) for appeal against decision in suit for jactitation of marriageHeld : Right of appeal under section 14 (1) of Act not to be made to disappear in absence of clear indication to that effect in Act Appellate Court, held further, erred in fiiding appeal incompetent by mis-construing provisions of section 14 of Act and by refusing to exercise jurisdiction vested in Court Impugaged order, heing illegal and without lawful authority, struck down in circum stances. [P. 166 & 167]^ & D ' ?: PLJ 1973 Lah. 492 rtf (ii) Family Courts Act (W. P. Act XXXV of 1964) - Ss.Jactitation of marriageMeaning of Held : Jactitation of marriage to be unwarrantable assertion and false pretence of being married.. [P. 166]C (iil) Appeal Right to test soundness of decision on appeal to right conferred on litigating party by statute.
Right ofHeld be very valuable [P 166]B Nemo for Respondents. Mr. Rashid-ud-Din Quraishi, Advocate for Petitioner. Date of hearing : 18-2-1985. judgment This application under Article 9 of the Provisional Constitution Order, 981 is against order dated 24-9-1984 of learned Additional District Judge, Toba ek Singh, dismissing an appeal directed against order dated % ' 24-1-1984, arising out of a suit for jactitation of marriage, instituted by Mst. ainab Bibi against Riaz, writ petitioner. 2. The facts giving rise to the present controversy briefly stated are that Mst. Zainab Bibi instituted a suit for actitation of marriage against Riaz in the Court of Judge Family Court, Toba Tek Singh. Defendant, when appeared, filed written statement. In the written statement, averments made in the plaint were controverted. Learned Judge Family Court, framed following issues : Issues : (1) Whether the suit in the present form cannot be proceeded. If so, what is the correct form and what is its effect ? Whether the plaintiff is entitled to the decree prayed for ? Relief. After the issues were settled, parties, were allowed opportunity to lead evidence in support of the aforenoted two issues. Accordingly, both the parties, adduced evidence in support of their varying versions. .Learned Judge Family Court vide his judgment dated 24-1-1984, found in favour of the plaintiff and decreed the suit. Against decree, an appeal under section 14 of the Family Courts Act 1964, was filed in the Court of District Judge. Learned Additional District Judge, Toba Tek Singh to whose file the appeal had been transferred, vide order dated 24-9-1984, found that the appeal was not entertainable under section 14 (2) of the aforesaid Act. In the result of view taken by him, he dismissed the appeal. Dismissal order, is under ^ challenge, at the instance of the unsuccessful appellant, 3. Respondent, Zainab Bibi, despite service, has not entered appearance and is proceeded against ex pane. Mr. Rashid-ud-Din Qureshi, Advocate, learned counsel or the writ petitioner has addressed arguments in support of the constitution petition. It has been forcefully contended by him that jactitation of marriage, was ifferent rom dissolution of marriage. Appeal against decree passed in a suit for jactitation of marriage was competent under section 14 of the Family Courts Act, 1964. earned dditional District Judge, has misconstrued the provisions of the Act and, on erroneous assumption, failed to exercise jurisdiction which clearly vested in his Court. Had it been a case of dissolution of marriage, view taken by Additional District Judge would have been unexceptionable. Since the whole question turns on the construction to be placed on section 14 of the Family Courts Act, 1964, it will be of some advantage to reproduce it. It reads : "14. (I) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable : (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified granting dissolution of marriage. Right .of appeal under section 14(1) of the Act, cannot be made to disappear, in the absence of a clear indication to that effect in the aforesaid Act. Therefore, I am of the firm view that Court of appeal, was in error when it found the appeal to be incompetent. The error is so apparent that to allow it to stand, would be causing manifest injustice. Additional District Judge, misconstrued the provisions of section 14 of the Act, and refused to exercise jurisdiction which clearly vested in his Court. Having arrived at the conclusion that appeal was competent, I have no hesitation in striking down the impugned order as illegal declaring it to have been made without lawful authority. 5. Writ petition, is allowed, Result is, that the appeal filed by Riaz against decree dated 24-1-1984, shall be deemed to be pending requiring rcdecision on merits in accordance with law. Copy of the decision be despatched to Additional District Judge, tor proceeding with the appeal, Petitioner is directed to appear before learned Additional District Judge on 19-3-1985. Since respondent, A/$f. Zainab, was ex parte, I make no order as to costs. Learned Additional District Judge, will endeavour to decide the appeal within a period of two months from the date of the receipt of the copy of order, (Aq. By) Petition allowed.
PLJ 1985 Lahore 167 [DB] PLJ 1985 Lahore 167 [DB] Present : abdul shakurul salam & muhammad aslam mian, JJ DOST MUHAMMADAppellant versus Mst. MAQSOODAN BIBI and AnotherRespondents. ICA No. 25/1985, decided on 16-3-1985. U) Family Courts Act (W. P. Act XXXV of 1964)
S. 5 read with Dissolution of Muslim Marriages Act (V11I of 1939) S. 2 and Civil Procedure Code (V of 1908)S. 11Dissolution of marriage- Suit for Dismissal ofEffect of- Subsequent suit Com petency of Res judicata Principle ofApplicabilityEarlier suit for dissolution of marriage failing according to pleadings and evidence of parties in suitCircumstances subsequently arising, however making life of parties impossible to lead within limits prescribed by Islamic LawHeld: Wife to, be competent to seek dissolution of marriage on ground of Khula notwithstanding dismissal of her earlier suit for such dissolu- tion Held further : Doctrine of res judicata to have no ap plication in circumstances of case. [P. l68]/4 (ii) Family Courts Act (W. P. Act XXXV of 1964)- S. 5 read with Dissolution of Muslim Marriages Act (VIII af 1939) S. 2, Provisional Constitution Order (CMLA's 1 of 1981)Art. 9 & Law Reforms Ordinance (XII of 1972) S. 3Dissolution of marriageDecree for Challenge to Family Judge dissolving marriage of parties after recording evidence and hearing them Such Family Judge having exercised jurisdiction in accordance with power conferred on him by law. Single Judge of High Court finding no interference called forHeld : No interference to be made with order of two courts. [P. 169]C (ill) Maintenaace-
WifeMaintenance ofRight ofHusband not shown to be justi fied in not paying maintenanceHeld : Maintenance to be paid to wife herever she be living. {P. 168Jfl O) Dissolution of Muslim Marriages Act (VIII of 1939)
S. 2See : Family Courts Act (W. P. Act XXXV of 1964) S. 5. [Pp. 168 & 169] ^&C Malik Allah Yar Khan, Advocate for Appellant. Date of hearing : 16-3 : 1985. order The appellant was married to the respondent No. 1 some time in 1974. The marriage was, what is called, a Watt a marriage. Appellant's sister was married to the respondent's brother. The latter marriage has come to an end. There is no issue from the parties, marriage. Learned counsel for the appellant read out from the evidence of the parties (photo copy placed on record) from which it appears that the respondent-wife had first gone to Union Council for her divorce and thereafter to the Civil Court. Her suit for dissolution of marriage was dismissed on 11-1-1982 and so also her appeal on 10-1-1933. She filed another suit on 20-10-1983 which was decreed on the ground of Khula, by the learned Judge Family Court on 30-7-1984. The order was challenged through a Writ Petition No. 55/1985 by the appellant which has been dismissed by the learned Single Judge vide order dated 9-1-1985. Hence this Intra Court Appeal. Learned counsel for the appellant has reiterated that since the suit of the respondent on the ground of Khula having earlier been dismissed, the second suit filed by her was incompetent under the doctrine of res judicata. The learned Single Judge has rejected the. contention and referred to naother decision of the High Court reported as Ghulam Muhammad v. Mst. Rasoida Bibi and 2 others (PLJ 1983 Lahore 493). The doctrine of res judicata has no application, in the circumstances of the case. A wife may apply for divorce on the ground of being habitually beaten, lack of maintenance etc. etc. If she fails in the suit, that will not give a handle to the espondent to go on beating the wife or not paying the maintenance by saying that she cannot go to the court again and get a decree on this ground. The suit earlier filed failed according .to the pleadings and evidence of the parties in that suit. If circumstances arise which make he life of the parties impossible to lead within the limits prescribed by Islamic Law, it would be open to the wife to seek dissolution of marriage on the ground of Khula notwithstanding that a request for dissolution of marriage on the ground of Khula had earlier failed. From a copy of the laint filed in the present suit (copy placed on record), it appears that the espon dent after narrating the previous litigation amongst the parties had said that since after the dismissal of her previous suit and the appeal for dissolution of marriage, the litigation amongst the parties was still going on and there was no possibility in future for living together. She has got hatred and the saturation point has reached where the life is in danager and that there is no issue from the wedlock. From the evidence which the learned counsel for the appellant had read out, it appears that his own witness, P. W. 1 had said that since the respondent was living away therefore, there was no ques tion of payment of maintenance. Maintenance has to be paid to the wifei whever she may be living unless a husband can show that he was justified in not paying the maintenance. After reqording evidence of the parties and hearing them, the learned Judge Family Court has come to the conclusion that this marriage cannot survive nor the parties can live within the limit prescribed by law. He thus dissolved the marriage. He had the jurisdiction and be has exercised it in accordance with the power conferred on him by law The order has been examined by the learned Single Judge and he found no interference called for. In the cireumstances, we too find no reason for interference in toe orders of the. two Courts. The appeal is, therefore, dismissed in Hmine. (TOM) Appeal dismissed.
PLJ 1985 Lahore 169 PLJ 1985 Lahore 169 Present: abdul shakurul sal am, J MUNIR AHMAD-Petitioner versus FATEH MUHAMMAD and 2 OthersRespondents Writ Petition No. 795 of 1985, decided on 17-3-1985. (i) Civil Procedure Code (V of 1908) O. XLIII, R. 3Interlocutory order Appeal againstNotice before presentation ofRequirement ofNo penal consequences provided for n-compliance of provisionHeld :" Provisidn of rules 3 of O. XLIII to be apparently directory and not mandatory. [P. 170]A (ii) Guardians & Wards Act (VIII of 1890)-
S. 12 read with Civil Procedure Code (V of 1908)O. XLIII R. 3 & Provisional Constitution Order (CMLA's 1 of 1981) Art. 9 Interim custodyApplication forOrder onAppeal against Failure to serve notice before presenting appealEffect, ofAppellant giving no notice to other party before presenting appeal against inter locutory order of Guardians Judge Additional District Judge dismissing appeal on such technical ground aloneHeld : Order to be without lawful authority and of no legal effect. [P. \70]B & C Malik Muhammad Hussain, Awan, Advocate for Petitioner. Ch. Muhammad Rashid, Advocate for Respondent No. 1, Nemo for other Respondents. Date of hearing : 17-3-1985. JUDOMBNT Respondent No 1 filed an application under Section 25 of the Gardjanf and Wards Act in respect of nil two children ; a daughter and 4 son. He also filed an application under Section 12 of the said Act for interim custody of the children. This was allowed by the learned Guardian Judge vide order dated 1-12 1984. The petitioner who claims to have married the girl on 20-1-1984, filed an appeal against the said order. The appellant had not given a notice to the respondent No. I as provided for under Order XLI11 Rule 3 C. P. C. which was quoted by the learned Appellate Court, the Additional District Judge as follows : (1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his advocate by deliver ing a copy of the memorandum and grounds of appeal alongwith a copy of the order apoealed against and obtain an acknowledge ment of receipt thereof for the information of the appellate Court. (2) On receipt of notice referred to in sub-rule (1), the responden may, with the permission of the Court, appear before it and con test the appeal and may be awarded costs on dismissal of the appeal in limine." The learned Additional District Judge observed that "I am of the opinion that the appellant has not complied with the newly amended law in Order 43 Rule 3 Sub-Rule (1) and (2) of the CPC. I therefore, find no force in the appeal, the same is hereby dismissed on this very technical ground." This is vidt order dated 6-2-1985. Hence this Constitutional petition. B 2. Learned counsel for the petitioner has submitted that the aforesaid provision was not applicable as the matter was governed by Section 47 of the Guardians and Wards Act, 1890 read with the Section 17 of the West Pakistan Family Courts Act, 1964. 3. Learned counsel for respondent No. 1 has contended that the petitioner was not entitled to retain the custody of the minor even if be was her husband because the girl was minor at the time of the alleged Nikah. 4. Whether the petitioner was entitled to retain the custody of the girl on the plea of being her husband or the custody granted to the espon dent father by the learned Guardian Judge is to be given effect to is a matter not germane to these proceedings. The question involved in this petition is whether the learned Additional District Judge was right to hold that the appeal has no force for the reason that notice under Order XLIII Rule 3 C. P. C. has not been given. The provision relied upon by the learned Additional District Judge quoted above, is pparently directory and ot mandatoryproviding no penal consequences for non-compliance of he provision. The learned Additional District Judge has dismissed the appeal in bis own words "on very technical ground". This was not the ype of a case in which technicalities were to have such a way that the matter of custody of a minor is not determined. 5. In view of the above, the order of the learned Additional District qJudge, Jhang dated 6-2-1985 is set aside and is declared to be without law- Iful uthority and of no legal effect The matter is remitted to him for disposal of the petitioner's appeal on merits. In order to avoid delay the parties are directed to appear before the learned Additional District Judge, Ihang on 24-3-1985 for further disposal of the appeal. In the circumstances, the parties shall bear their own costs. (TQM) Petition accepted.
PLJ 1985 Lahore 171 PLJ 1985 Lahore 171 Present: khalil-ur-rehman khan, J Malik GUL SHAHPetitioner versus SETTLEMENT & REHABILITATION AUTHORITIES through Chief Settlement Commissioner and 2 OthersRespondents Writ Petition No. 977-R/1975, decided on 9-12-1984. (!) Evacuee Properties & Displaced Persons Laws (Repeal) Act (XIV of 1975)-
S. 2 (2) & (3)Displaced Persons LawsRepeal ofPending procjedingsEffect on Form filed for tr.ansfcr of property pending at time of repeal of Displaced Persons (compensation & Rehabilita tion) Act (XXVIII of 1958)Held : Pending proceedings having been saved, such form to be disposed of in accordance with provi sions of Act. [P. 174|X PLD 1979 SC 846 ref. (ii) Displaced Persons (Compensation & Rehabilitations) Act (XXVIII of 1958)
S. 16-B read with Evacuee Properties & Displaced persons Laws (Repeal) Act (XIV of 1975)S. 2 (2) & (3) Jaramu & Kashmir displaced personsProperty in possession ofForm for transfer of property filed before repeal of Displaced Persons ActHeld : Such form to be disposed of under provisions of Displaced Persons (C & R) Act as (were) then in forceS. 16-B read with relevant paras of Scheme (IV) placing ban on transfer of property to person other than displaced persons from occupied territory Held : Such ban on transfer to continue to subsist despite repeal of sub-section (5) of S. 30Property in question admittedly in posseesion of displaced per sons from occupied territoryHeld : Transfer in case made in favour of displaced person from India to be without jurisdiction and illegal. [P. 174] B PLJ 1976 SC 240 & 1976 SCMR 166 ref. Dr. A. Basil, Advocate for Petitioner. Ch. Riasat AH, Advocate for Respondents No. 3 . Dates of bearing : 5/7; 10-11-1984. JUDGMENT The facts necessary for the disposal of this constitution petition are that Malik Gul Shah petitioner is a displaced person from Jammu & Kashmir whereas Bashir Hussain respondent is a displaced person from India . Property No. S. W. 104-R-15 commonly known as House No. 15 Street No. 5, Hota Singh Road, Sanat Nagar, Lahore, comprises of several units out of which one unit is in occupation of the petitioner and the respondent. Malik Gul Shah applied on KNCH Form for the transfer of this portion which is ear-marked as "portion'E'" and the learned Deputy Settlement Commissioner, Lahore , vide order dated 23rd of January, 1960, transferred the same to the petitioner as a self-contained residential unit. A P. T. O. dated 23rd of November, i960, was also issued in favour of the petitioner. A demand notice for payment of transfer price amounting to Rs. 19,3,20/- was issued to the petitioner on 23rd of May, 1962. As the payment was not made, another notice dated 18th of July, 1964, under Para. 35 of Scheme No. 1 for deposit of the transfer price within one month was also issued. Thereafter, a notice dated 16th of March, 1965, requiring the petitioner to vacate the portion on account of failure to pay the price was also issued. It appears that the petitioner filed an appeal against the demand of Rs, 19.320/- as transfer price and the same was accepted by the Additional Settlement Commissioner vide order dated 31st of May, 1965, and the matter was remanded to the Deputy Settlement Commissioner with a direction to issue fresh notice demanding payment of the transfer price. It was observed that default, if any, will result in cancellation of the transfer. Thereafter, demand notice dated 27th of June, 1970, under Para. 24 of the Schedule to the Act was issued demanding deposit of transfer price amounting to Rs. 19.320/- within thirty days. It is alleged that this notice was not received by the petitioner. The transfer was, however, cancelled on 18th of September, 1970, and order to resume the property was also passed on 21st of September, 1970. It is also the assertion of the petitioner that the order dated 31st of May, 1965, was never communicated to him after reserving the judgment by the learned Additional Settlement Commissioner and that despite submission of an application for supplying a copy of the said order on 18th of November, 1965, the same was supplied for years till March, 1971. The petitioner then filed Revision No. 190 of 1971 but the same was dismissed vide order dated 10-3-1971. It may be mentioned that after obtaining the P. T. O. the petitioner filed ejectment petition against Bashir Husain, respondent, in June. 1964, and the respondent was ordered to be ejected by the Rent Controller on Kith of April, 1965. Appeal against the ejectment order was rejected by the District Judge on 18th ol October, 1965 and S. A. O. No. 532 of 1965 also met the same fate vide judgment dated 30th of January, 1974. A suit was also filed by the respondent but the plaint of of the same was rejected on 19th of February, 1975. As in the meanwhile the transfer of the portion in dispute was cancelled from the name of the petitioner and a resumption order was also passed and as his revision petition also remained unsuccessful, the petitioner filed Constitution Petition (W. P. No. 478-R/71) in this Court on 19th of May, 1971. This writ petition was dismissed as withdrawn on 25th of May, 1973. With this dismissal, then claim of the petitioner to the transfer of the portion in dispute came to at an end. Bashir Hussain, respondent, then filed a form under Revised Settlement Scheme No. VIII on 5th of February, 1974 seeking transfer of the portion in question and the same was transferred by the Deputy Settlement Commis sioner in his favour vide order dated 3rd of February, 1975. Thereafter, available because of the insertion of subsection (5) to section 30 by Ordi nance I of 1959. This subsection so added was omitted by Ordinance 13 of 1964. Such a protection from ejectment has not been provided either by section 16-B cr under Settlement Scheme No. VI, Now even Displaced Persons (Comp : & Reh :) Act, 1958 itself stands repealed by Act XIV of 1975, and no ^such protection from ejectment as is claimed has been con tinued or saved'by the Repealing Act. The question of effect of repeal of Displaced Persons Act with reference to the provisions of section 30 of the Act was considered by the Supreme Court in the case of Muhammad Ramzan v. Ch. Bashir Ahmad (P. L. D. 1981 S. C. 340) and it was held that rights, obligations etc. covered by various clauses of section 6 of Act X of 1897 are not applicable to the provisions of section 30 of Act XXVIII of 1958 after its repeal. Again in Mst Jaleesa Begum v. Iqbal Ahmad Quresbi (P, L. D. 1982 S. C. 396), it was observed that "when a repeal takes place, the situation, but for the provisions like section 6 of the General Clauses Act, is as if the repealed law never existed. The saving is with regard to the proceedings pending and in the context of this case the rights accrued or the obligations incurred". The exact meaning and scope of concepts like rights accrued or the obligations incurred, was'considered by giving the example of the case of Abbot v. Minister of Lands (1894 A. C. 425) and learned Judges of the Supreme Court recorded the conclusion that with the repeal of the Repealed Act, the protection itself disappeared. Learned Judges affirmed the decision given in the case of Muhammad Ramzan (Supra). Following, with respect, the aforesaid view, I hold that protection from ejectment cannot be claimad by displaced persons from occupied territory. The situation which emerges is that the transfer in favour of the respondent was void and, as such, was ineffective in law and thus the order dated 3rd of February, 1975 passed by the Deputy Settlement Commissioner, transferring the portion in dispute to the respondent was without jurisdiction. The order dated 28th of May, 1975 placing a condition regarding protection from ejectment was equally without jurisdiction and illegal. The portion in dispute, as such, is available property and has to be transferred in accor dance with the Scheme for the Management and Disposal of Available Urban Properties framed under section 3 (1) read with section 1 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It may be pointed out here that unlike available agricultural land, no ban on transfer in respect of available properties in possession of displaced persons from occupied territory has been visualized in the Scheme, or under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Under section 3 (2) agricultural land temporarily allotted under any of the repealed Acts. Regulations to a displaced person from Jammu & Kashmir State has to be offered for sale to such allottee unless an order of cancellation of allotment has been passed against him. This again has been subjected to the provisions contained in the three provisos. This saving has been specifi cally provided in the case of agricultural land but such a saving in the case of urban available properties is conspicuously missing. Such a protection to displaced persons from Jammu & Kashmir State has not been provided in the Scheme framed for the management and disposal of available urban properties. The change in the policy of law is deliberate and clearly gives out the intention of the Law Maker that in the case of urban properties no such ban against transfer, as was contemplated in Scheme No. IV framed under section 16-B of the Repealed Law, is to continue. The respondent, as such, can compete for the transfer of the house in question with the Petitioner under the Scheme in force. The parties, if so advised, ma approach the Deputy Administrator Residual Properties for transfer of th available property and the applications for transfer, if filed, shall be dis posed of on merits in accordance with law. This petition is, accordingly, disposed of with no order as to costs. (SHR)' Petition disposed of.
PLJ 1985 Lahore 176 PLJ 1985 Lahore 176 Present: muhammad habibullah, 3 MUHAMMAD SHAHEEN AZIZ NIAZIAppellant versus MUHAMMAD BAQIR and AnotherRespondents FAO No. 314 of 1978, heard on 23-12-1980. Cifil Procedure Code (V of 1908)
O. XXXIX, R. 1. & O. XLIII, R. 1 (r) Temporary injunction Gr?nt ofImposition of conditions Order of Challenge to Property in dispute in danger of being alienated by respondent Appellant applying for grant of injunction in suit for specific per formance of contractCivil Judge asking appellant to deposit entire balance amount of sale consideration as condition precedent to grant of interim reliefHeld : Rule 1 of Order XXXIX having not provided for imposition of any condition, impugned order to be set aside. [Pp. 177 & nS]A, B & C Mr. Rafiq J avoid Butt, Advocate for Appellant. Mr. Riaz Anwar, Advocate for Respondent. Date of hearing : 23-12-1980. judgment This is an appoal from an order dated 24-10-1978 made by Mian F M. Khalid, Civil Judge, Lahore , whereby he accepted the appellant's ap plication for grant of interim relief, but imposed the condition of depositing a sum of Rs. 1.70.000/- in Court before a particular date. 2. The relevant facts, in brief, are that respondent No. 2 herein is the owner of House No. 117-P-Gulberg, III, Lahore . Respondent No. 1 in his capacity as the general Attorney of respondent No. 2, agreed to sell the house to the appellant for a consideration of Rs. 2, 15.000/-. The agree ment to sell was executed on 19-10 1977 and a sum of Rs 45,000 was paid in advance. On the allegation that the respondents had refused to fulfil the contract, the appellant filed a suit for specific performance, which is still pending before the trial Court. Alongwith the suit, the appellant also filed an application for interim injunction praying to the effect that the respondents be restrained from alienating the property in dispute in the meanwhile. By his order dated 24-10-1978, the learned Civil Judge grant ed the interim relief, but made it conditional upon the appellant depositing a sum of Us. 1,70 000 in Court before 31-10-1978. It was also observed ja the order that if ths appsHaat failed to deposit the amount by the date, his application for interim injunction would be deemed to have been rejected, and "the respondents shall be at liberty to deal with the property in any manner suiting their convenience and choice." . It is contended on behalf of the appellant that while grantin interim relief under Order XXXIX, rule 1 C-P.C. no, condition could be imposed by the learned Civil Judge. It is also submitted in the alternative that in any case the order passed by the trial Court is illegal inasmuch asin the event of the appellant failing to deposit Rs. 1,70,000/-, the espondents were given liberty to deal with the property in any manner suiting their convenience and choice. It is urged that in view of the doctrine f lispendens such liberty could hot be allowed to them. Any sale made by them during-the pendency of the litigation, must remain subject to he decree to be passed in the suit. 4. Since the appellant bad failed to deposit the sum by the specified date, according to the impugned order, the pplication for interim elief stands rejected. 5. Learned counscil for the respondent relies on Karachi Floor Mills Union and others f. Province of West Pakistan and others (P.L.D. 1968 Kar. 910) to submit that'it is discretionary for the Court to impose the condition of furnishing bank guarantee while granting temporary njunction under the provisions of Order XXXIX rule I (2) C.P.C. Order XXXIX rule 2 (2) C.P.C. prescribes that "the Court may by order grant such n junction, on such terms, as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit.'' It is true therefore that while granting interim relief, under rufe 2 of Order XXXIX, the Cq»rX may impose conditions. However, I find that the rule which was attracted in the present case is rule, 1 of Order XXXIX which prescribes as follows : "1. Where in any suit it is proved by affidavit or otherwise (a) that any property in dispute in a suit is in danger of being "4Pj wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale/removal or disposition, of the property as the Court thinks fit, or until further orders," Obviovsly the interim order was passed because the property in dispute was! in danger of being alienated by a party. This rub does not provide or then imposition of any condition. 6. In any case keeping in view the facts and circumstances of this case, I find it was not necessary for the trial Court to ask the appellant to eposit the entire balance amount of the sale consideration as the condj- I tion precedent to the grant of interim relief. It may also be pointed out .. that even if the stay order :was not granted, the respondents could not be
r Tmf granted the liberty to deal with the property in any manner they liked, be cause if they made any sale during the pendency of the suit, according to| the law the same would be subject to the final decision of the case. In viewl^ of the above discussion, this appeal is accepted and the impugned order isj |set aside, and the respondents are restrained from alienating the property in Jdispute during the pendency of the suit. There hall, however, be no order [as to costs 7. Let the file of the case be returned to the trial Court immediately for deciding the case on merits expeduiously. (MIQ) Appeal accepted.
PLJ 1985 Lahore 178 [DBJ PLJ 1985 Lahore 178 [DBJ Present : saad saood jan & rustam S. sidhwa , JJ PROVINCE OF PUNJAB through Secretary Health, Lahore and Another Appellants versus Miss KHAQAN MAHMOOB-Respondent ICA No- 213 of 1984, decided on 19-1-1985 Educational Institutions « Alteration in Seats Reduction of Provincial -"r A t± S en D t P PowTt A of- Scheme for reducing seats in various seats to be proper. [P. PLD 1965 Lah. 272 ; PLD 1971 Lah, 641 ; PLJ 1976 Lab. 284 ; PLJ 1976 Qta. 62 & PLD 1973 Kar. 33 «/. (ii) Educational Institutions -- Educational (h) Educational Institutions r-Admission policy.Amendments inHeld : Admission lists once displayed, vested rights to accrue in favour of candidates whose names be included therein and any amendments in admission policy thereafter to adversely affect their position and vested rights. [Pp. 187 & 188]C PLD 1973 Kar. 332 ; PLH 1976 Kar. 1039 & PLJ 1976 Qta. 62 re/, (r) Educational Institutions
Admission policyAmendments toHeld : Date of declaration of result, to be treated as date by which all amendments to admission policy to be validity .made (save in special circumstances). [P. 188JD PLJ 1976 Qta. 62 re/ (vi) Educational Institutions
Admission toRight to apply forInstitution reserving right at any stage to refuse admission to any candidate appearing to be un. suitable or unlikely to complete courseHeld : Mere possession of high qualifications or superior position by itself not to quarantee him any admissionHeld further : Application forms to be nothing but offers from students for being considered for admission and agreeing to be bound by terms and conditions of institutions. [P. 187)5 (rii) Educational Institutions
Admission formApplication forHeld : Application for admis sion form in itself be'ng vehicle by which student conveys his offer to college uthorities to be considered for admission, such form not to, constitute any acceptance of any offer and as such to grant no vested right. [P. \89lE PLD 196QSC 310 ; PLD 196J Kar. 981 & PLD 1969 SC 223 re/ (viii) Educational Institutions
Medical collegesAdmission policy of- Govt.Powers of-^Held: Punjab Government to have power to lay down and amend admission policy of medical college under its jurisdiction. [P. 187]^ PLD 1965 Lah. 272 ; PLD 1971 Lab. 641 & PLJ 1976 Lab. 284 ref. (ix) Educational Institutions
Prospectus Rules, regulations and instructions contained in- Held : Rules, regulations and instructions or commitments contained in ollege rospectus to be considered as proper publication of declared policy of college concerned or of Gbvernment in that behalf and to be treated as inding ollege authorities to honour them. [P. 189]G PLJ, 1978 SC 439 & PLJ 1979 SC 8/</ (x) lotra Court Appeal
Writ petitionGround not taken in Effect of Held: Grounds not taken in writ petitions not to be allowed to be argued at stage of Intra Court Appeal. [P. 194]N (xi) Islamic Law & Jurisprudence
"Ehsan" Application ofHeld : "£As<w" being essential em bodiment of executive process in Islam, same to be applied to meet technical ifficulties. [P. 194]0 (xii) Writ Jurisdiction
Necessary partiesFailure to implead - Effect of All persons likely to be affected not impleaded as party in writ petitionHeld : High Court being bound by strict rules of propriety and procedure, no relief in favour of any person to be given in absence of necessary parties. [P. 193]M Ptr Saad Saood Jan, J: (kiii) Educational Institutions
Admission policyAlteration ia^-Deduetion of marksDecision regardingHeld : Candidate applying for admission on basts of marks obtained by him in his very first attempt not to be equated with candidate applying for admission on basis of same marks obtain ed in two or more attempts Provincial Govt. directing that in assessing merits of candidates ten marks to be deducted for each additional attempt made to pass or improve marks Held : Direction given by Government not to be arbitrary. [P. 194 & \9$]P (xiv) Educational Institutions
Admission policyAlteration inDeduction of marks for extra chanceDecision regarding"Extra cJhance"Meaning ofHeld : Words "Extra chance'' (in relevant role "of Prospectus for admission 1983-84) to mean additional chance taken over and above normal or ordinary chanceCandidates passing examination conducted by Federal Board availing (two) chances normally provided for passing (two parts of) Intermediate Examination Held : Examinee taking and passing examination by taking normal chance hardly to be said to have taken extr^chance. [P. \9$]Q ( xv) Writ Jurisdiction-
Necessary partyFailure to impleadEffect ofCandidates tak b ng examination conducted by Federal Board not impleaded as party litting of Intermediate Examination in two parts giving candidates from such Board advantage over other candidatesNondeduction of ten marks for vailing two chances for passing Exami nation from Federal Board appearing to be somewhat discrimina toryHeld : No writ petition being competent or enforcement of fundamental rights and candidate taking examination held by Federal Board being also not before High Court, no relief to be ranted in case on such ground alone. [P. 195JK Mr Khalil'Ur-Rahman Ramday, Addl. Advocate General with Mr. A/. Af. S.a'd B«8> Advocate for Appellant. Mr. Muhammad Ismail Ch,, Rai Muhammad Nawaz Kharl, Mr. Muhammad Ashraf Atim, Mr. Raza Hussatn Shamshi, Mr. Sharif Hussain Bokhari, Mr, R. A.Zafar, Syed Zulfiqar Haider and Mr. Afzal Hataer Advocates for Respondents. Dates of hearing: 26/27-11-1984 & 1/3-12-1984. 'judgment Rustam S. Sidhwt, J.This judgment will dispose of the under-noted fourteen Inter Court Appeals as they involve common questions of law and facts : 1. ICA 213 of 1984 2. ICA 215 of 1984 3. ICA 216 of 1984 4. ICA 218 of 1984 '$: ICA 219 of 1984 6. ICA 220 of 1984 7. ICA 224 of 1984 8. 1C A 225 of 1984 9. 1C A 226 of 1984 10. ICA 214 of 1984 11. ICA 217 of 1984 12. IGA 221 of 1984 13. ICA 222 of 1984 and 14. ICA 223 of 1984 These appeals arise out of a consolidated judgment of a learned Single Judge of this Court passed in sixteen constitutional petitions filed before him by the respondents and others, whereby he upheld the action of the Provincial Government and the Principal of the King Edward Medical College Lahore, the Chairman of the Admission Board, the present appellants; in regard to reduction of seats, which decision of the Gover nor the learned Judge held to be non-justiceable, but struck down the action of the appellants regarding deduction of marks of the respondents under para. 22 (b) of the prospectus as having been affected clandestinely, retrospectively and in a discriminatory manner. The learned Single Judge, therefore, partially accepted the writ petitions by holding that the respon- dents, who could not secure admission on account of Rule 22 (b) having been applied against them, should be considered for admission, without affecting such deduction of marks and without disturbing the admissions of students already made by the Admission Board. 2. The brief facts of the case are that in respect of the combined admissions to the First- Yaf M.B B.S. Course in respect of the seven Medical Colleges in the Piinjab for the Academic Year 1983-84, applications were invited through an advertisement published in various Urdu and English daily newspapers, including The Pakistan Times, Lahore, dated 13-12-1983. It was stated in the said advertisement that admissions in all categories would be on merits, that the students qualifying in the Supple mentary Examination of 1983 and those obtaining less than 50 per cent marks {in F.Sc/B.Sc. Examinations would not be eligible, and that twenty marks for NCC/WG would be added to the marks obtained by the candidates in F. Sc /B. Sc, provided they produced certificates front the competent authorities. Other matters regarding the application to be filed and certificates to be attached, were stated. It was also stated that other details could be obtained from the Office of the Principal, King Edward Medical College Lahore, and that the old prospectus titled "For the Session 1980-81 and Onwards" would not be applicable for the admission and that the new prospectus was under print. The last date for tb« submission of applications was given as 10-1-1984, put subsequently, it was extended by ten days. It was no where stated in the advertisement that he seats originally obtaining in the previous year would be reduced and that each college would only admit two hundred students or that any arks would be deducted from the total number of marks of students who had appeared for their examination 1 in parts, whilst preparing the merit list for each category of students to be admitted. It is the case of the respondents that no prospectus was available .for sale either with the King Edward Medical College , Lahore , or at the Government .Printing Press, till much after the admissions were made and some of the writ petitions filed ere admitted. It appears that attempts were made by some of the students to obtain the prospectus from both the sources, but they failed. The case,therefore, is one of "no prospectus". Be that as it may, it appears that a few days before the Admission Board assembled to admit the andidates, certain decisions of the Provincial Government taken at the highest level were available to it, through the Principal of the K. E. Medical ollege, n the basis which the admissions were made. Two of such decisions which affected the applicants and in respect of which the sixteen writ petitionswere filed are the reduction of seats and deduction of marks. The seats tobe filled in each of the seven colleges was restricted to two hundred nd whilst preparing the merit list of candidates, ten marks were deducted from the total marks of each candidate for each extra chance availed of in the case of such candidates who had failed, or had taken their examinations in parts, or had attempted to improve their marks in the FJJc/B.Se. exami nations. Since the rules regarding the reduction of seats and deduction of marks were not in force earlier, but came into effect with the admissions for he academic Year 1983-84, a large number of students, including thepresent respondents, filed sixteen constitutional petitions before the; .High Court, hallenging the same. In the writ petitions leading up to Inter CourtAppeals mentioned at serial Nos. 1 to 9 above, the appellants' action of reducing he umber of seats and deducting the marks on account of clearing their examination in more than one attempt, were assailed, whilst in the writ etitions leading up to Inter Court Appeals mentioned at serial Nos. 10 to 14 above, the action of the appellants in deducting the said marks was lone challenged. ;3. On behalf of the respondents it was urged before the learned Single Judge that, apart from the advertisement, the prospectus of 1983-84 was never available for sale o/distribution to the intended applicants, eitherupto the last date of the filing of the application forms or upio the date when the results were announced, but was actually printed on 29-5-1984 f. e. long after the admissions were completed and ths results of admitted candidates were displayed and that the prospectus was available only after rest of the writ petitions were filed by the respondents. It was also submit ted that there was no indication in the advertisement inviting applications for admission about the reduction of seats and deduction of marks and that the appellants'action in reducing the seats and deducting the marks was arbitrary and in deviation of the long established practice prevailing in the Province. It was also urged that the action was retrospective in nature. The other grounds of attack advanced were that the impugned actions were retrospective in nature, that the reduction in seats had been made only in case of l>pen merit seats, but not in case of reserved category seats, such as that of nominees of the Governor, army personnel's children and doctors' children, that in the presence of Rules 7 and 15 of the Rules for the submitted that the advertisement clearly stated that admission in all cate gories would be made on merit and that twenty marks for NCC/WG would be added to the marks obtained by the candidates who had completed their NCC/WG Training, if they produced certificates from competent authority. Since no representation was made with regard to any form of deduction of marks, the said advertisement amounted to a declaration of the policy of the Provincial Government and the Admission Board that there was no intention on their part to deduct any marks. It is further submitted that the decision to deduct marks affected the vested rights of the respondents. In this connection^, Maxwel on Interpretation of Statutes U969 Edition) page 219 and Craies on Statute Law (1971 Edition) page 400, have been referred. It is also contended that the deduction was arbitrary and unjust in that it placed the students of colleges affiliated with the Lahore, Rawalpindi, Quetta and Multan Boards, who passed their F. Sc (Pre-medical Examination) in two straight years, at a disadvantage, against those who passed the same examination from colleges affiliated with the Federal Board and other Boards, who passed their examination in the same period of two years, but in two parts, the first part in the first year and the seccnd part in the second year. 8. I have given my anxious consideration to this case. Before I deal with the main contentions, I note with some concern that proper assistance was not rendered to the learned Single Judge, as the judgment is founded upon certain misconception of facts. In para 2 of the judgment, the learned Single Judge refers to the fact that in respect of the admissions in question, the number of seats of candidates to be admitted on merits has been reduc ed by two hundred. In para 3 thereof, the learned Judge states that in the advertisement there is no indication that seats have been reduced by two hundred as compared with the previous year and in para 10 thereof he states that the number of students to be filled against merit quota has been reduced by two hundred. In fact, the seats against merit quota were not reduced by two hundred ; rather a maxima ceiling of the candidates to he admitted in each college was fixed at two hundred, thus reducing the aggre gate number of seats in the seven colleges by 376 seats over those in the previous year. Consequent to the reduction in seats, the number of students to be admitted against open merit quora and special category quotas also stood reduced in different proportions. In para 12, the learned Single Judge refers to the submission before him that the Governor directed the change in the policy of admission so as to affect deduction of marks in case of additional attempts, but since on such order of the Governor was produced before him, it could, therefore, not be said as to when the Governor issued such direction. The learned Judge accordingly went on to assume that the deductions were, therefore, effected clandestinely. After inspecting the relevant file, I note that the policy decision was taken on 18-3-1984 by the Provincial Government, presided over by the Governor of the Punjab. Various decisions including that relating to the reductionjn the number of seats and deduction in the marks was taken in that meeting. The Principal of the King Edward Medical College, Lahore, the Chairman of the Admission Board, was, amongst others, present at that meeting. The Admission Board, therefore, through its Chairman, had knowledge of all ' decisions taken by the Provincial Government before it assembled on 25-3-1984 to deal with the admissions. The Government also formally communicated its decisions to the Admission Board on 1-4-1984. The Admission Board sat twice to go through the applications, the first time (PLJ 1976 Lahore 284 at page 285), where the question was whether students who had passed the F. Sc. (Pre-raedical) in the Supplementary Examination, had the right to apply for extra seats arising in the medical colleges as a result of a new medical college being set up, which seats were subsequently advertised, over the heads of such students who had passed the F. Sc. (Pee-medical) in the Annual Examination and had earlier applied for admission, this Court/held that for the new additional seats, the authorities concerned were free to lay down the sphere and scrpe of their policy. This Court, therefore, has expressed itself clearly with regard to the powers of the Punjab Government to lay down and amend the admission policy of the medical colleges under its jurisdiction and I have no hesitation in following the same view, But this should not be taken to mean that this Court has approved in principle the action of the Government in not framing the rules under section 8 of the Medical Colleges .Governing Bodies) Ordinance, 1961. or in enacting the Medical Colleges (Governing Bodies) (Punjab Repeal) Ordinance, 1970, both of which have prevented proper Governing Bodies from being established and managing the Medical Colleges in the Punjab, which is so very necessary for the proper academic development of these colleges and for effecting some stability to their academic policies, so that the vagaries of too frequent amendments .does not unsettle the hopes and prospects of intended applicants. 11. As regards the second question, namely, the fixing of the epoch of time upto which amendments can be made to the admission policy by the competent authority, without disturbing the vested rights of the applicants, if any obtaining, the same does not present any difficulty. In Arif AH Hazoor's case (C.P S L A. No 124 of 1970 decided on 29-5-1970), the Supreme Court held that there was no authority for the proposition that the right to apply for admission to an educational institution carried with it any legal right to be admitted, which could be enforced under Article 93 of the Constitution. I submit that application forms are nothing but offers received from students offering themselves for being considered for admis sion and agreeing to bs bound by the terms and conditions of the institu tion with regard to a host of matters, including their admission, courses of studies, etc., both as conditions precedent to their admission and as conditions subsequent to their selection. Where the selection is dependant upon interview, or where the institution reserves the right at any stage to refuse admission to any candidate who appears, at the time of interview, to be unsuitable or unlikely to complete the course, the msre possession of high qualifications or superior position by itself does not guarantee him anv admission. In the? instant case, rules 16 and 18 of the Prospectus provide for such eventualities. It would, therefore, appear that the date when the Admission Board assembles to select candidates and conducts its proceedings, can fairly be taken as the final date by which amendments should be made or adopted. However, this may present a difficulty. In the preparation of the list of candidates admitted, certain errors may creep in. Before such lists are displayed, the Admission Board would have the right of checking the lists and removing any anomalies or correcting any mistakes that may appear therein. Thus, for all legal purposes, the date when admission lists are finally displayed, is the date by or before which all amendments to the admission policy made by the Admission Board or communicated to it by the Provincial Government should be made. Once the admission lists are displayed, vened rights 'would accrue in favour of candidates whose names are included therein and any amendments 12. Turning to the third and last question as regards the legal posi tion of the Application for Admission form and the College Prospectus, the same does present some difficulty. An application for admission form contains a number of particulars, which have to be filled, questions, which have to be answered, and details of documents, which have to be attached therewith. In specifying such, particulars, questions and details, it cannot be said that any express or implied representations are made or the declared policy of the College of tbe Government is published for tbe benefit of the intending applicants, the. application form does not constitute any acceptance of any offer. It itself is the vehicle by which a student conveys his offer to the college authorities to be considered for admission. Any conscious or unwitting expression of any particular matter in the admission form would not give the applicant any foundation to lay a claim thereon, on the basis of any vested right acquired through its publication or distribution. Cases where the policy of Government is expressly declared publicly in the press or by public notice, which, if acted upon, would grant to the person fulfilling the conditions a vested right, such as was found in Hussain A. Shah's case (PLD 1960 SC 310), Bilil Ahmad's case (PLD i963 Kar. 981) and Fazal .Din's case (PLD 1969 SC 223), fall in a category apart and must not be con fused with a case covering an application for admission, which stands in a totally different category. An admission form, therefore, does not grant any vested right. A college prospectus, however, stands on a different footing Rules, regulations and instructions or com mitments contained therein, depending upon the mode of expression can be considered as proper publication of the declared policy of th college concerned or of the Government in that behalf and be treatec as binding the college authorities to honour them. To grant the' collge authorities sufficient latitude to introduce changes in the rules and regulations contained in the prospectus, a clause is generally added, binding students to abide by any changes that may be made to the rules and regulations by the competent authority from time to time. Assuming that such a provision is not there, the inherent right of tbe competent authority to effect any change, on general principles, cannot be negatived. The question whether the rules or regulations contained in a prospectus can be treated as having a statutory sanction or be equated with bye-laws, was considered by the Supreme Court in Mohammad Iqbal Kban ISiazi's case (PLJ 1978 SC 439-PLD 1979 SC 1), where it was held that as tbe prospectus before them bad not been framed under the statutes of the University or under the powers conferred by any law, it bad no statutory sanction. On tbe question whether tbe prospectus could be equated with subordinate legislation, like bye-laws, it was held, on the basis of well established principles laid down in treatises on statute law, that even if they were so treated like some form of bye-laws, they could be challenged on the ground that they were repugnant to the laws of tbe land, or on the ground that they were uncertain, or that they were unreasonable. Distinguishing the ratio laid down by Russel Chief Justice in Krusc's ease (1898, 2 Q.B: 91) for determining the reasonableness of a bye-law in respect of the bye-laws of a company or of a corporation, as opposed to that of a statutory public representative body, the Supreme Court held that the rules in the pros pectus could not be construed liberally, but had to be construed strictly and any rule which was unreasonable or unfair, could be struck down as invalid. Examining the matter on the assumption that the prospectus could be equated with a contractual document, the Court, following There are some other cases dealing with the same point, but 1 need not drag a greater length of chain. In the instant case, the proposal to reduce the seats in the medical colleges in the Punjab was first mooted in 1982. Orders were issued by the Health Department to implement the decision of the . Governor. Some of the students filed writ petitions in the Lahore High Court praying that the reduction in seats was not in conformity with the provisions of the prospectus in force. Subsequently, on re-consideration, the decision was suspended. However, between 1982 and 19&4, the Pro vincial Government built up public opinion through,the press and in April fc 1984 introduced the scheme in the best interest of t'he medical profession, particularly to remove over-crowding in tbe colleges and the medical pro fession and to remove difficulties anssing out of lack of trained staff and equipment and inadequacy of facilities in the teaching hospitals. The objection that since the case in one of "no prospectus", the Government has no right to introduce a change which retrospectively affects the Tights . of the students adversely, cannot be sustained. As held by me in para 10'» above, even if the case be treated as one of "no prospectus", the right of the Provincial Government, on general principles to lay down the policy as regards the number of seats to be filled, cannot be denied. The decision cannot be stated to be retrospective either, as tbe same was in the knowledge of the Chairman of the Admission Board on 18-3-1984 and formally com municated to the Admission Board by the Health Secretary on 1-4-1984. The Admission Board assembled from 25-3-1984 to 28-3-1984 and from 1-4-1984 to 4-4-1984 to consider the applications The Admission, Board could have postponed the admissions and after printing and distributing the new prospectus, could have invited applications afresh. This would have indefinitely delayed the admissions and the commencement of the sessions. To meet the emergency, the applications were considered in the light of the new policy. As held in para 11 above, since the amendments were adopted before the date of release of the result of the selection, tbe same cannot be treated as retrospectively applied. Taking all circumstances into consideration, the finding of the learned Single Judge that the decision of the Government to reduce the seats was proper, is correct and I endorse the same. 14. 1 no 1 turn to the last point relating to the deduction of marks. ' Rule 22 (b) of the Prospectus for 1983-84 states that "The following marks shall be added or deducted from the total marks of the candidates in order to prepare the final merit list : (a) sAdd 20 marks for National Cadet Corps Training for a perrjion who has completed the training or, having successfully 'completed not less than seventy-five per cent of the total training period and is still undergoing training. (6)1 Deduction of 1Q marks shall be made for each extra chance a.vailed of in the case of students failing, taking examination by parts or attempting to improve marks in F.sc/B.Sc Examinations." As earlier held in relation to the decision about the reduction of seats, this decision cannot be held to be retrospective, as it was also simultaneously taken with that decision by the Provincial Government and conveyed in time to tbe Admission Board before it assembled to deal With the admissions and before the fi aal lists of.admissions were released. 1 have inspected the f is not arbitrary, the action of the Admission Board in not applying it in thci case of .students of the Federal and other Boards, where the examination! was taken in parts, is arbitrary and without lawful authority. In short, the| Admission Board has failed to interpret and apply its own rule correctly. Before concluding, I would like to mention that no question of the enforce ment of any fundamental right arises in this case. In short, the Admission Board has failed to enforce its own rule, and they can be bound to its enforcement. 15. The only question that now remains is that relating to the relief to be granted to the respondents. I ndte with regret that the respondents did not implead all the other students who would have been affected, had the deci sion on the question of deduction of marks gone in their favour, as parties to their respective writ petitions. About 28 writ petitions filed by other students are still pending disposal awaiting the decision of these appeals. I am infor med that the students affected were not impleaded, as the writ petitions were mainly directed against the reduction of seats and had the decision on this question gone in the respondent's favour, extra seats would have been created, suffiicient for the admission of the respondents, without affecting any of the admitted students. I accept this position for a moment, but then, the respondent should have been prepared for the other eventuality i.e that the decision went against them on this point, in which case, those to be effected would have had the right to defend their interests. The Suoreme Court in University of the Punjab v. Shahid Nazir (1982 P. S. C. 456) has clearly held that where students affected are not impleaded, the writ petition is liable to dismissal. The representative of the Admission Board, who is present in Court, submits that if 10 marks are now deducted in respect of all students who have passed their F. Sc., Examination from the Federal, Karachi, Hyderabad, Sukkur and other Boards, where this examination was taken in parts, over 24 male and 13 female students already admitted, would be affected. These students who will be affected, were not before the learned Single Judge and had no opportunity to defend their case. It is not sufficient to relieve them from their right of defence by merely holding that their admissions will not be disturbed. Before the learned Single Judge they had a right to urge that the rule was properlv appli ed and if it was so held they would have succeeded. If they had succeeded, then they would have had a legal right to stay and not any secondary right to fall back on the mercy of the College authorities or the directions of the High Court to permit them to continue their studies on compassionate grounds. In the absence of necessary parties, it is not possible for this Court, which is bound by strict rules of propriety and procedure, which the law of the land and precedents compel, to give any relief in favour of any person. It was the duty of the respondents to have i in pleaded in their writ petitions all the other students who would have been affected. This failure is fatal to their case. It is also submitted before me that though the Pros pectus for 1983-84 has not provided for any Governor's seats, wholesale admissions have been made by the Chief Executive and this indirectly shows that the policy fixing the ceiling of total admissions has been relaxed and if the judgment is allowed to stand, the learned Governor will himself admit the respondents, who are few in number, on the principle of relaxa tion. I note that the previous prospectus limited the Governor's seats to a total of 15 for all the seven colleges and the policy decision taken by the Provincial Government, as is apparent from the Health Secretary's note dated 8-3-1984 in the Governor's summary file, shows that the Governor's merits of the candidates ten marks should be deducted for each additional! attempt made to pass or to improve the mark cannot be described asl arbitrary, We were informed by the learned Additional Advocate-Genera!) that the practice of deducting ten marks for each additional attempt has been recognized and is rife in the other Provinces of the country, 3. It is true that no such deduction has been made in the case of the candidates who passed the Intermediate Examination conducted by the Federal Board of Intermediate and Secondary Edacation but then the case of these candidates is on a slightly different footing. The said Board has divided the Intermediate Examination into two parts. The first part is to be cleared in the first year and the second part is to be cleared in tne second year. Thus these candidates hava no choice but to take the Exami nation in two parts. The rule relating to deduction of marks does not in terms apply to them as they do not avail of any "extra" chance but only take such chances as are normally provided for passing the Examination to my mind, the words "extra chance" have been used in the rule in the sense of an additional chance taken over and above the norm.il or ordinary chance. An examinee who takes and passes the Examination by taking ihe normal chance can hardly be said to have taken an extra chance. It is also worth noticing that those who take the Examination held by the Federal Board have a much shorter period to prepare for the same than those who are required to take the Examination at the end of two years' course but avail of more than one attempt in this regard. Nevertheless, I am prepared to concede that splitting of the Examination in two parts gives the candidate from the Federal Board an advantage over other candidates and, perhaps, for this reason non-deduction of marks in their case may seem to be somewhat discriminatory. But then, no relief can be granted to the respondents on this ground alone for tw > reasons. Firstly, at present! no writ can lie for the enforcement of fundamental rights. Secondly, thsl candidates who took the Examination held by the Federal Board are not!' before us. In the event it is held that the deductions should have been) made in their case also, even though they had no choice but to take the examination in two parts, they might lose admission which has already been granted to them. This we cannot do without hearing them. 4. As regards the final decision, I agree with my learned brother to the extent that these appeals be accepted and the writ petitions be dismissed with no order as to costs. (TQM) Appeals accepted.
PLJ 1985 Lahore 195 PLJ 1985 Lahore 195 Present: abdul shakurul salam, J MUSLIM COMMERCIAL BANK LIMITED, I.I. Chundrigar Road , Karachi and AnotherPetitioners versus ADDITIONAL DISTRICT JUDGE, Faisaiabad and 7 OthersRespondents Writ Petition No. 21 of 1985, beard on 10-4-1985. (i) Urban Rent Restriction Ordinance, 1959 <W. P. Ord. VI of 1959)
S. 13-ATransfer of ownershipIntimation regardingFailure to sendEffect of-Requisite notice um;sr S. 13-A not given to tenant- Held : Person acquiring title and not giving notice not to be entitled to eject tenant on ground of default in payment of rent Landlord, however, to be entitled to invoke relevant provisions of law for evicttion of tenant on other grounds. [P 191]A (ii) Urbin Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)- S. 13A Transfer of ownership Intimation regarding Failure to send Effect of Landlords going to Court not on ground of default in payment of rent by tenants but for iheir personal need Held : Petition for eviction to proceed even in absence of service" of notice to tenant under S. 13- A Landlords seeking ejectment on ground of default, however, to be non-suited for not giving notice. ip. 198]fi (Hi) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)- -- Ss. 13 & 15 read with Provisional Constitution Order (CMLA's 1 of 1981) Art. 9 Eviction Order of Personal need Ground of Concurrent findings Interferrence with Landlords admittedly refus ing enhancement of rent on account of their requiring premises in good faith or their personal use Finding of the Courts below regard ng respondents needing premises for bona fide personal use based on evidence on cord Held : No interference to be possible in exercise f constitutional jurisdiction (of High Court). [P. 198]C Provisional Constitution Order (CMLA's 1 of 1981) --- Art. 9 See : Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959) Ss. 13 & 15. [P. 198]C Syed Faizul Hassan Naqvi, Advocate for Petitioners. Sh. Naveed Shaharyar, Advocate for Respondents 3 to 8. Nemo for Respondents, 1 & 2. Dates of hearing: 23-2 & 10-4-1985. judgment The respondents No. 3 to 8 filed an ejectment application against the petitioners on the ground of personal need before the learned Rent Controller, Faisalabad . The following issues were framed : (1) Whether the petitioners require the premises in dispute in good faith for their personal use and occupation ? OPP. (2) Whether the petitioners have not served the statutory notice under Section 13 (a) of the Ordinance ; if so, with what effect ? OPR (3) Relief. ' 2. After recording the evidence of the parties, the learned Rent Controller decided both the issues in favour of the respondents and directed the eviction of the petitioners vide order dated 18-4-1984. The petitioners filed an appeal. The decision on the issue of personal need was questioned. The learned Appellate Authority, the Additional DistricrJudge, Faisalabad, went over the evidence and also observed that it was admitted by the petiti oners' own witness as R. W-l that "the respondents had not agreed to increase the rent and their refusal was on account of the fact that they required the disputed property in good faith for their personal use." He upheld the finding of the learned Rent Controller on the bona flde need of the respondents and dismissed the petitioners' appeal allowing them three months' time to vacate the premises in dispute. This is vide order dated the relevant provisions of law, like Section 13 of the aforesaid Ordinance. The judgments of the learned Supreme Court of Pakistan quoted by the learned counsel for the respondents are directly applicable to the question in hand i. e. the effect of non-issuance of a notice. In other words, if the respondents had sought ejectment of the petitioners on the ground of jefault, they would have been non-suited for not giving the notice. Since they had gone to the Court not.on the ground of def iult in payment of the rent by the petitioners but for their personal dona//^«neea, their petition had to proceed. It may also be noticed that the petitioners had not even argued the point about notice under Section 13 (A) of the Ordinance before the Appellate Authority, i. g. the Additional District Judge. 7. As regards the finding of the two Courts below that the respondents needed the premises for bona fide personal use based as it is on tne vidence on record coupled with the admission of the petitioners' own witness K. W. 1 that the respondents had refused enhancement of rent on ccount of the fact that they required the premises in good faith for their personal use, it is obvious that no interference is possible in exercise of the onstitu ional jurisdiction. The contention of the learned counsel for the petitioners that one of the respondents f. e. respondent No. 3 had told the etitioners that he was not keen to evict them is neither here nor there. Neither he was produced nor any documjnt executed by him. In any case, he was not the only person who had obtained the order of ejectment against the petitioners. 8. In view ot what has been stated above, there is no force in this Constitutional petition and the same is dismissed but in the ircumstances the parties are left to bear their own costs. Learned counsel for the petitioners requested for 1 time being given for handing over vacant possession. Both the learned counsel for thepetitioners and the resoondents agree that the petitioners shall hand over vacant possession of the premises to the respondents within three months from today. Be it so. (TQM) Petition dismissed.
PLJ 1985 Lahore 198 PLJ 1985 Lahore 198 Present: abdul shakurul salam, J MEttARBANPetitioner versus HAMID KHANRespondeat Civil Revision No. 2t4S-D/<JO, decided on 10-4-1985. (i) Civil Procedure Code (V of 1908)
O. XLI, R. 31Appellate Court-Judgment ofContents of HeW : First appellate court to re-assess evidence of parties, examine findings recorded by trial court and to give reasons for upholding or reversing same. [P. 199]A (ii) Cifil Procedure Code (V of 1908)-
S 115&O. XLI, R 31Judgment without reasonsChallenge to,Perfunctory approach to dutv involving adjudication of rights people shown by judgment of first appellate courtSuch court not referring to evidence at all much less judging itHeW : Judgment and decree of appellate court not to be sustained at all [P. 199]B& C Malik Noor Muhammad Awan, Advocate for Petitioner. Mr. Ashiq Hussain Malik, Advocate for Respondent Date of hearing : 10-4-1985. judgment This revision petition is directed against the judgment and decree of the Additional District Judge, Sargodba dated 25-10-1980. One of the issues was hether the petitioner was a. tenant cf the land in dispute. It was found against him by the learned trial Court. On hii appeal the learned dditional District Juoge observed that ' s the appellant's contention is that he had superior right of pre-emption being a tenant o\er the disputed land. The vidence,produced by the appellant/defendant No 1 was rightly dis-believed. The judgment is self speaking. The learned Cm! Judge, has given reasons n support of his findings." The findings of the learned Civil Judge, on issue 'No. 1 require no interference and the same is hereby affirmed. The learned first appellate Court has not referred to the evidence ail all much less judged it. It is the-duty of the first appellate Court to re-j assess the evidence of the parties, examine the findings recorded by the\ A trial Court and to give reasons for upholding or reversing the same: The! method to write a judgment is given in the basic book dealing''with civil litigation (CP.C Order XLI, Rule 31.) The quotation from We judgment of the ower appellate Court would show that it has not examined the evidence and has observed that it "was rightly disbelieved" by the learned trial Court. ow it was rightly disbelieved, he does not mentioV. Then it observed that the "learned Civil Judge, has given reasons in support of his findings." What ere the reasons given by the learned Civil Judge? he does' not refer to, much less ha weighs them. The judgment shows perfunctoryjfl approach to he duty which involves adjudication of rights or' people calling/ for more care and understanding. 2. In view of the above, the impugned order cannot be sustained ml all. It is set aside The matter is remitted to the learned District Judge 1C Sargodha for fresh decision in accordance with law, In the circumstance?! the parties are left to bear their own cost?. (TQM) Decreeaside.
PLJ 1985 Lahore 199 PLJ 1985 Lahore 199 Present: lehrasap khan, J MUHAMMAD AYUB-Petitioner versus ADDITIONAL DISTRICT JUDGE, Gujramvala and 2 OthersRespondents Writ Petition No 4423 of 1984, heard on 13-4 1985. (i) Urban Rent Restriction Ordinance, 1959 (W.P Ord. VI of 1959) -S. 13TenantsEviction ofSingle applicationCompetency ofEjectment based on same ground and (also) result of same cause of ctionHeld : Landlord to competently bring single ejectment application against different tenants. [P. 202]X PLJ 1984 SC 307 rel. PLJ 1976 SC 458 & PLD 1967 Lah. 653 re/, (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959) S. 13 (2) (vi)-EvictionReconstructionGround ofLandlord requiring premises in possession of various tenants for reconstruction and conversion into one shop and godownLocal Municipal Committee already approving plan regarding proposed reconstruc tionHeld : Premises being required for reconstruction, question of applicability of different provisions of Ordinance applicable in cases of ejectment form residential and commercial premises to have hardly any relevancy. [Pp. 202 & 203 ]B PLJ 1980 SC 404 & 1984 SCMR 1142 ref. (iii) Urban Rent Restriction Ordinance, 1959 (W.P Ord. VI of 195?) -
S 13 (2) (vi)EvictionReconstfuction Ground ofEviction of tenants sought mainly on ground of building being required to be reconstructedHeld : Proviso to sub-section (3) of S. 13 of Ordinance being applicable (only) where eviction be sought on ground of need for personal use, filing of ejectment application before expiry of fixed term of tenancy in case to be immaterial. [P. 203]C (!t) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)
S. 13 (2) (vi).& (3) (a)Eviction -Reconstruction and bona fide need for personal useGrounds ofHeld : Grounds of need for re-construction and bona fide need for personal use not to be mutually destructive of each other. [P. 20 3] D PLJ 1981 SC 903 & 1983 SCMR 1223 rel. PLD 1973 Pesh. 186 held already overruled. . Mr. AH Ahmed Awan, Advocate for Petitioner. Syed Sharif Hussain Bokhary, Advocate for Respondent No. 3. Nemo, for Respondents 1 & 2. Date of hearing : 13-4-1985. judgment This judgment shall dispose of nine Writ Petitions, i.e. Writ Petitions Nos. 4424/84, 4425/84, 4426/84, 4427/84, 4428/84, 4429/84, 4430/84, 4431/84, apart from the one cited in the heading .(i.e. 4423/84). All these nine Writ Petitions arise out of judgment dated 202-1984 passed by Mr Riaz Ahmad, the then Rent Controller, Gujranwala, directing the eviction of the nine petitioners herein. The judgment of the learned Controller was upheld by the learned appellate Authority viz. a learned Additional District Judge, Gujranwala, viie his judgment dated 9-6-1984, whereby he dismissed the appeals of the petitioners. 2. Respondent No. 3, namely, Sh. Zafarullah, hereinafter referred to as the respondent (in all the Writ Petitions) is admittedly the owner of one composite building which contains eight shops and a residential portion. The afore-mentioned shops and the residential portion were rented by the petitioners in the under consideration Constitutional Petitions on different occasions through different agreements of tenancy. The respondent, however, sought eviction of bis tenants of the afore-said building through one single application for eje?tment on the ground that he wanted to re construct the building for~which he has already got the .plan approved from the local Municipal Committee and that in the re-constructed pre mises i.e. a shop and a godown, he intended to carry on his psrsonal business as since April, 1980, he had retired from Government service. 3. The ejectment application was, of course, resisted by all the petitioners who maintained that as they occupied different premises under different agreemsnts of tenancy, therefore, one single ejectmsnt application against all of them was not legally competent. On merits also, they eontroverted the respondent's plea of need for re-construction and bonafide need for personal use. ' 4 On the pleadings of the parties, the learned Controller, framed the following issues : (1) Whether the petition is bad for mis-joinder of parties ? (2) Whether the petitioner requires the disputed property in good faith for his personal need ? (3) Whether the petitioner requires the disputed property in gooj faith for reconstruction ? 4. Relief. 5. After recording the parties' evidence and after hearing them, the learned Controller vide his impugned judgment dated 20-2-1984, concluded that he petition was not bad for mis-joinder of parties and that the res pondent required the tenanted premises for re-construction and for his bonafide ersonal use. He consequently ordered the ejectment of the petitioners. Their appeal before the learned appellate authority, as said above, failed and was dismissed on 9-6-1984. 6. The afore-mentioned judgments passed by the learned Rent Controller and the learned Additional District Judge have been assailed through the under consideration nine Constitutional Petitions. 7. It has been urged on behalf of the petitioners that : (a) nine tenants (petitioners) who occupied different premises under the respondent as a result of different agreements of tenancy, could not be victed as a result of single ejectment petition ; (b) due to mis-joinder of parties, the learned Rent Controller and the learnedAdditional District Judge did not apply the conscious mind and failed o appreciate that different provisions of-law were applicable to residential and commercial premises in the ma'tter of ejectment ; (c) in case of Writ Petition No. 4430/84, the shop was given on rent to the petitioner on 15-1-1980 at a monthly rent ot Rs. ISO/-for a period of eleven ------------before the expiry of that period, ejectment petition giving rise to the impugned judgments was had already been approved by the local Municipal Committee. In the light! of this contention when the premises-were required for reconstruction, the! applicability of different provisions of the Rent Restriction Ordinance) applicable in cases of ejectment of residential premises and commercial premises, has hardly any relevancy. In Mohammad Akbar and another v. Dr. Muhammad Rafiq etc. (PLJ 1980 SC 404), ii has been observed : "The requirement of the law is that there should be sanctioned plan of construction or reconstruction of the property and it is, therefore, immaterial whether the forwarding letter of the Municipal Committee concerned is produced or not, if the Court is satisfied that the plan produced is, indeed, a sanctioned plan as required by law." la Gbulam Mohammad and another v. Maqsood Hussain and three others (1984 S.C.M.R. 1142), it has been ruled that High Court had fallen in error in not noticing clear position of law that under the amended pro visions of clause (vi) of Section 13 (2) of ths Rent Restriction Ordinance, landlord having obtained necessary sanction for erection of a new building was under no further obligation to prove that premises were reasonably and in good faith required by him for the said purpose. After having obta ned necessary sanction for re-erection, he was entitled under law to the eviction of the tenant. for personal use are mutually destructive of each other! Mt any substance, in Da wood v Mohammad Yasin (P L Jl L. D 1982 S. C 227), after analysing the relevant Restriction Ordinance, 1959, the Supreme Court of ounds of personal requirement and reconstruction uctive of each other and that eviction of a tenant the same proceedings was not illegal. The Mohammad Yusuf v Mst Zobra Bibi (P. L. O. over ruled, jn Mohammad Shafiq v S M. M R. 1227) also it has been ruled that that of personal use were not mutually 12.
for personal use in good faith. But, in the present case, the eviction of the tenants was sought mainly on the ground that the building was required to be reconstructed for which the local Mumcipa Committee had already approved the plan. Sub-section (2) (b) (vi) of Section 13 of the R;nt Restriction Ordinance, 1959, deals with a case wtbre eviction is sought on the round of reconstruct! m. The proviso referred to above is not applicable to sub-s.-ction (2). It is, therefore, immatena that ths ejectnunt application was filed before the expiry of the fixed term of the tenancy. 13. Thejast contention that the grounds of need for re-constructionl 15. The petitioners are, however, allowed, three months' time; .effective from today, for vacating the tenanted premises. (TQM) Petitions dismissed.
PLJ 1985 Lahore 204 [DB] PLJ 1985 Lahore 204 [DB] Prestnt: abdul shakurul salam & muhammud aslam mian, JJ PROVINCE OF PUNJAB through Secretary, Education Department, Government of Punjab, Lahore and 5 OthersAppellants versus MUHAMMAD TUFAILRespondent Intra Court Appeal No. 75 of 1977, heard on 8-4-1985. (i) Executive
Judicial orders Interference with Executive Powers of Judicial orders passed and maintained up to High Court without being questioned any furtherHeld : Such orders not to be set at naught by executive fiat by invocation of statutory powers Held further : Government functionaries being bound to carry out judicial orders, losing party not to be allowed to subvert such deci sions by throwing 'equality before law" principle to winds. [P. 206]fl (il) Intro Court Appeal
Interference inFinding of Single Judge in leading judgment expressly upheld by Supreme Court Held : Such judgment of Single Judge to call for no interference (in Intra Court appeal). [P. 206]C & D (ill) Law
Principles ofApplication ofHeld : Principles of law divorced from context to be (.competently) discussed in academic atmosphere onlySuch principles coming to os applied to b; concrete cases in CourtHeld : Court to look into and interpret such principles in manner that just decision be arrived at between parties. [P. 206JX. Mr. M. M. Sated Beg, Advocate for Appellant. Mr. Hamid Khan, Advocate for Respondent. Dates of hearing : 7 & 8-4-1985. JUDGMENT Abdul Shftkurul Salam, J. This judgment will dispose of I. C. A No. 75 of 1977, I. 'C. A. No. 76 of 1977, l.C.A. No. 133 of 1977, I.C.A. No. 266 of 1982, 1C. No. 264 of 1983, l.C.A. No. 265 of 1983, I.C.A. No. 268 of 1984, I.C.A. No. 269 of 1984, W.P. No. 7226 of 1980, W.P. 8207 of 1980, W.P. No. 4806 of 1981, W.P. No. 1419 of 1982, W.P. No. 2097 of 1982, W.P. 2773 of 1983 and W.P. No.2315 of 1984, as these have been ordered to be heard together. 1985 province ob punjab v. muhammad tufail Lab. 205 (Abdul Shakurul Salam, J) 2. Relevant facts for the disposal of these cases are that private educational institutions were being'run on the privately owned premises. The institutions were taken over by the Government. Private owners obtained or sought order of ejectment against the Government under the West Pakistan Urban Rent Restriction Ordinance 1959. The Government in exercise of its powers under the West Pakistan Requisitioning of Immov able Property (Temporary Powers) Act 1956 passed orders of requisition of the premises to avoid eviction. This action was successfully challenged by the private owners or is being questioned. 3. The leading judgment on the subject has since been reported as Muhammad Tufail v. Province of Punjab and 5 others (P.L.D 1978 Lahore 87), in which orders of requisition were declared to be without lawful authority inter alia on the two relevant grounds for the purposes of hese cases i.e. mala fide exercise of power of requisition to avoid orders of ejectment or threatened ejectment and secondly that a property lready in possession cannot be requisitioned. 4. Learded counsel for the Government Mr. M.M. Saeed Beg, led elaborate and lengthy arguments that motive for exercise of power is ot decisive if there is power and has been exercised and secondly that the Government has the power to requisition a property-even if it had already been in possession thereof. He read from treatise on Administrative Law and referred for the latter proposition to two cases reported as Sh. Abdul Aziz nd another v. Home Secretary, West Pakistan Government and others [P L.D. 1956 (W.P.) Lahore 107J] and M Anwar v. The Government of West Pakistan nd another [P.L.D. 1958 (W.P.) Lahore 578J. 5. Learned counsel for the private respondents in support of the judgment referred to Province of Punjab v. AzmatulUh (1980 SCMR 932) wherein the judgment was relied upon by the learned Additional District Judge and the Government's Second Appeal dismissed by the High Court and the atter was not challenged any further. It means that the Governnjent accepted the validity of the judgment. When the final order of ejectment as challenged in the learned Supreme Court, the judgment was, again, not questioned by the Government. It was taken note of with approval by the learned Supreme Court. They, then, referred to Province of Punjab through the Secretary to the Government of the Punjab Education Department etc. v. Civil Judge with Powers of Rent Controller, Lahore and others (PLJ ^Sl^SC 711) wherein the learned Supreme Court explicitly observed. "We are of the view that the learned Courts below were perfectly justified in ordering the eviction of the petitioner. As a matter of fact, we agree with the stricture passed on petitioner No.l by the Rent Controller and the Appellate Court to the effect that petitioner No.l had acted mala fide in getting the building requisi tioned to avoid the consequences of its own negligence, which is supported by the view expressed by Mr. Justice Aftab Hussain, while setting aside the order of requisition." also They referred to a learned Division Bench judgment from Karachi High Court reported as Mst. Minbaj on Nisa v. D.C. and D.M. Atp. 713. Karachi and Director of Education Karachi (N.L.R. 1983 Civil 70) where in the judgment was referred to with approval and it was held that where requisition order was passed to avoid eviction, the order was illegal. Then, to another judgment of the same learned Judge on similar lines which was upheld by a learned Division Bench of this Court in I.C.A. No. ^5 of 1979 decided on 30-3-!9»0. When consequential order was challenged in the Supreme Court in Province of Punjab v. CivilJudge (PLJ 1982 SC 711), the judgment of the learned Single Judge on the point was not even questioned Of course, the learned Sinj . Judges whose judgments have been appealed against by the Government have come to the same conclusion and followed the leading judgment of the learned Single Judge. 6. In view of the principles of consistency of judicial decisions and uniform application of law and the further fact that an omnibus order to lequisition private properties without reference to individual cases to avoid eviction, it seems unnecessary to dilite and discuss the bare propositions of law canvassed by the learned counsel for the Government. He may be right and these may bs determined when an occasion arises in appropriate E ases. Principles of law divorced from the context can be discussed in an cademic atmosphere only. When these come to be applied to concrete ases in Court, these have to be looked into and interpreted in a manner that a just decision is arrived at between the parties. Some body's right cannot be denied because another, wit powerful can exercise power to keep tthe other out of his proprietary right. Judicial orders passed and mainained up to the High Court without being questioned any further cannot be set at naught by executive fiat by invocation of statutory power were permissible judicial decisions will be subverted by the losing party throwing 'equality before law' principle to winds and that top by Govern ment functionaries whose duty it is to carry out judicial orders. Learned Supreme Court of Pakistan in Province of Pmjab v. Civil Judge uPLJ 1982 SC 711) has expressly upheld the finding cf the learned Single Jjudge in the leading judgment that ruquisition to avoid eviction is a \malafide act. Explicitly the orders of requisition were to avoid eviction lunder the relevant law. he 7. In view of what has been stated above, the leading judgmtat of learned Single Judge calls for no interference and appeals against that I.C.A. No 5 of 1977. I.C.A. No. 76 of 1977. are dismissed with osts. So also the judgments of the other three learned Single Judges in which the former judgment is followed are upheld and appeals against their judgments i.e. I C.A. No. 266 of 1982. I.C.A. No. 264 of 193 and I.C A. No. 265 of 1983, too are dismissed with costs Contrary judgments by two other learned Judges in I.C.A. No. 133 of 1977, I.C.A. No. 268 of 1984 and I.C A. No. 269 of 1984 are set aside requisition orders declared to be without lawful authority and of no legal effect. However, the parties are left to bear their own costs. 8. Writ Petition Nos. 7226 of 1980 and 8207 of 1980 are inter-related. Petitioner in the first petition filed an ejectment petition on 3-5- 977. Respondent- Government passed an order of requisition on 19-12-1977. The Rent Controller directed the respondent on 4-1-1978 to deposit the arrears of rent It was not done. Defence was struck off and the respon dent was directed to be ejected vide order dated 6-3-1979. Respondent's appeal was dismissed upholding the finding of default and reliance on requisition was found untenable in view of the leading judgment P.L.D. 1978 Lahore 87). This is vide order of the Additional. District Judge dated W. P. No. 2773183 14. Respondent No. 1 Ms/. Surraya Akhtar filed an application for ejectment against the petitioner, the Province of the Punjab , on the ground of efault in payment of rent, damage to the property and for personal use, on 3-1-1977. It was resisted by the petitioner relying on its requisition order ated 26-4-1977. The learned Rent Controller dismissed the eject ment petition on the ground that he had no jurisdiction in view of the requisition rder. The respondent filed an appeal. The learned Additional District Judge relying on a decision of the learned Supreme Court dated 12.2 1980 and the eading judgment (P.L.D. 1978 Lahore 87), accepted the appeal and remanded the case to the learned Rent Controller for decision in the light of the ssues framed. This is vide order dated 21.3 1983 This is challenged by the petitioner through the present Constitutional petition. The order of the learned Additional District Judge being well based calls for no interference. Therefore, the petition is dismissed with costs. W. P. No. 215J843 15. Mst. Nazir Begum filed an ejectment application against the respon dents on the grounds of default in payment of water tax and for personal use, on (2.11 1979. It was resisted by the respondents on the ground that the premises have been requisitioned, through a written statement filed on 82.1V80. Relying on the requisition order dated 6.3.1978, the learned Rent Controller held that he had no jurisdiction to hear the petition. This is vide order dated 17.3 1980. The landlady has challenged the order through this Constitutional petition. The learned Rent Control ler as not right at all to hold that in view of the requisition order, he had no jurisdiction to proceed with the petition. He had to determine the ontroversy brought before him, including the efficacy, validity and appli cability of the requisition order in the circumstances of the case and in the light of the cases ecided on the point. Therefore, his order of refusal to xercise statutory jurisdiction conferred on him cannot bs sustained and is consequently declared o be without lawful authority and of no legal effect. He is directed to proceed with the case on merits. The petition is thus allowed but in the ircumstances the parties are left to bear their own costs. (TQM) Order accordingly.
PLJ 1985 Lahore 208 [DB] PLJ 1985 Lahore 208 [DB] Present : abdul sbakurul salam & muhammad aslam mian. JJ MUHAMMAD MUMTAZAppellant versus JUGDE FAMILY COURT, Shahpur Sadar, District Sargodha and AnotherRespondents Intra Court Appeal No. 245 of 1983, decided on 14-4-1985. (i) Dissolution of Muslim Marriages Act 1939 (VIII of 1939)
S. 2 (vii)MarriageDissolution ofOption of pubertyExercise ofHeH : Marriage contemplated to be repudiated being as (one) entered bsfore age of 16 years, step for repudiating same to come up on attainment of 16th year as minimum witaout going for proof of puberty Plaintiff attaining age of puberty anywhere before 1985 muhammad mumiaz v. judge family court (Muhammad Aslam Mian, J) L»h, 209 sixteen yearsHeld : Repudiation of marriage in exercise of option of puberty to be still ava lable at age of puberty earlier than sixteen year under Islamic Law. [P. 213J/4&B (ii) Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)
S. 2 (vii)Repudiation of marriageRight ofExercise of Held : Female to be (required to be) sui juris in matrimonial sense at time of undoing contract of marriage entered into by father or guardian on one's behalfHeld further : Right of repudiation to be competently exercised at age of sixteen or at age when puberty be achieved in which case onus to prove puberty to be upon person repudiating marriage. [Pp. 213 & 214] D (in) Provisional Constitution Order (CMLA's I of 1981)-
Art. 9 read with Family Courts Act, 1964 (W. P. Act XXXV of 1964)S. 5 & Dissolution of Muslim Marriages Act (VIII of 1939) S. 2 (vii)Family JudgePlea beforeFailure to raiseEffect of Held: Appellant (in Intra Court Appeal) not to be allowed to raise his case on ground not taken before Judge Family CourtPlea raised before High Court not raised before Judge Family CourtHeld : Writ not to be issued on such plea. [P. 214]/ 7 & G (iv) Islamic Law & Jurisprudence
PubertyPresumption regarding Held : Puberty to be presumed in absence of evidence on completion of age of fifteen yearsHeld farther : Puberty setting in earlier (also) to be competently proved. [P. 213]C Mubammadan Law by D. F. Mulla. [para. 251J ref. (v) Islamic Law & Jurisprudence
PubertyAchievement ofEffect of Held : Achievement of puberty to develop legal capacity either to marry or to undo marriage (still not consumated). fP. 214JE (vi) Family Courts Act, 1964 (W. P. Act XXXV of 1964)-
S 5-See : Provisional Constitution Order (CMLA's 1 of 1981)Art. 9. [P. 214JF&G Mr. Hidayatullah, Advocate for Appellant. Mr. Mansoor-ur-Rehman Afridi, Advocate for Respondent No. 2. Date of hearing : 3-2-1985. judgment Muhammad Aslam Mian, J. This Intra Court Appeal has been brought from an order dated 5-11-1983 of a learned Single Judge of this Court who dismissed the writ petition (W. P. No. 4607/83) filed by the appellant against a judgment and decree dated 24-9-1983 passed by Syed Nasar Ali Shah Judge Family Court, Shahpur, dissolving the marriage between the appellant and respondent No. 2. 2. Briefly the facts of the case are that respondent No. 2 instituted a suit for jactitation against the appellant on 18-10-1983 in the court of the Judge Family Court, Shahpur alleging that she was a minor and was suing through her mother. At the time of her nikah dated 30-1-1982 she was sixteen yearsHeld : Repudiation of marriage in exercise of option of puberty to be still ava lable at age of puberty earlier than sixteen year under Islamic Law. [P. 2l3]A & B (ii) Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)
S. 2 (vii)Repudiation of marriageRight ofExercise of Held : Female to be (required to be) sui juris in matrimonial sense at time of undoing contract of marriage entered into by father or guardian on one's behalfHeld further : Right of repudiation to be competently exercised at age of sixteen or at age when puberty be achieved in which case onus to prove puberty to be upon person repudiating marriage. [Pp. 213 & 214] D (Hi) Provisional Constitution Order (CMLA's 1 of 1981)
Art. 9 read with Family Courts Act, 1964 (W. P. Act XXXV of 1964)S. 5 & Dissolution of Muslim Marriages Act (VIII of 1939) S. 2 (vii)Family JudgePlea beforeFailure to raiseEffect of Held : Appellant (in Intra Court Appeal) not to be allowed to raise his case on ground not taken before Judge Family CourtPlea raised before High Court not raised before Judge Family CourtHeld : Writ not to be issued on such plea. [P. 214]F & G (iv) Islamic Lair & Jurisprudence
PubertyPresumption regardingHeld : Puberty to be presumed in absence of evidence on completion of age of fifteen yearsHeld farther : Puberty setting in earlier (also) to be competently proved. [P. 213]C Mubammadan Law by D. F. Mulla. [para. 251 j ref. (v) Islamic Law & Jurisprudence
PubertyAchievement ofEffect ofHeld : Achievement ofpuberty to develop legal capacity either to marry or to undo marriage (still not consumated). [P. 214]£ (ri) Family Courts Act, 1964 (W. P. Act XXXV of 1964)-
S 5-See : Provisional Constitution Order (CMLA's 1 of 1981) Art. 9. [P. 214JF&G Mr, Hidayatullah, Advocate for Appellant. Mr. Mansoor-ur-Rehman Afridi, Advocate for Respondent No. 2. Date of hearing : 3-2-1985. judgment Muhammad Aslam Mian, J.This Intra Court Appeal has been brought from an order dated 5-11-1983 of a learned Single Judge of this Court who dismissed the writ petition (W. P. No. 4607/83) filed by the appellant against a judgment and decree dated 24-9-1983 passed by Syed Nasar Ali Shah Judge Family Court, Shahpur, dissolving the marriage between the appellant and respondent No. 2. 2. Briefly the facts of the case are that respondent No. 2 instituted a suit for jactitation against the appellant on 18-10-1983 in the court of the Judge Family Court, Shahpur alleging that she was a minor and was suing through her mother. At the time of her nikah dated 30-1-1982 she was performance of Nikah. The age of respondent Mo, 2 at the time of filing the suit was less than 13 years since the learned trial Judge has given his finding that respondent No. 2 at the time of Nikah was not above the age of 12 years The right of option of puberty could be exercised in law after attaining the age of 16 years and before the age of 18 years, unless that was established by evidence that the puberty bad been attained earlier than 16 years. There was no averment in the plaint that respondent No. 2 had attained puberty at the time of filing the suit nor was there any evidence to that effect. The trial Judge and the learned Single Judge have taken an erroneous view that the right of option of puberty can be exercised even before attaining the age of 16 years or before attaining puberty. In support of his contention the learned counsel has referred to section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 which provision is ; Grounds for decree for dissolutionof marriage. A woman married under Muslim Law shall be entitled to obtain a decree for tbe dissolution of her marriage on any one or more of the following grounds, namely (vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudia ted the marriage before attaining the age of eighteen years ; Provided that the marriage has not been consummated ; He has also relied upon Mst. Daulan v. Dos« [P L,D. 1956 (W.P.) Lahore 712], in this cases while analysing section 2 (vji) of the Dissolution of Muslim Marriage Act, 1939 in which at that time instead of the age of 16, 15 years was mentioned, it was observed : "Clause (vii) is capable of an interpretation that repudiation takes place when the age of 15 has already been reached. The words before she attainted the age of 15 years can quite properly be interpreted as implying that she has already attained the age of 15 when she repudiates the marriage. Under Muslim Law there is a presumption of attainment of puberty at the age of 15 but this presumption is rebuttable. Clause (vii) of section 2 adopts 15 as the fixed age of puberty without an opportunity of rebuttal. This clause does not speak of puberty at all but only of an age though in fact it deals with the option arising at puberty and the only way in which it can be reasonably interpreted is that a woman who has before the age of 15 years been given away in marriage by her guardian is allowed to repudiate her marriage for a period of three years after she attains the age of 15 and before she attains the age of 18, The clause eliminates the fight over proof of puberty." tne on-l 4 ° 'i section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 since the provision so obtaining as a matter of course is to be treated as exhaustive as to its applicability for every thing to be looked into the same which very neatly mentions two ages, therefore, there is no option but to construe the first one as the minimum and the second as maximum. A marriage con templated to be repudiated is as having b?en entered before the age 16 years, therefore, the step for repudiating the same comes up on attainment of sixteenth year as the minimum without going for the proof puberty. 8. But the matter does not end here as in Mst. Daulan v. Dosa [P.L.D. 1956 (W.P.) Lahore 712] it has also been observed : "The option of puberty, 6fMuhammadan Law is only a right given to a minor party to a contract to avoid the contract entered into by her guardian on becoming sui juris. As the preamble shows, the Dissolution of Muslim Marriages Act, 1939, does not purport to effect any change in hammedan Law but to clarify nd consolidate it. We will not, therefore, adopt any interpreta tion which effects a fundamental change unless we are forced to do o The legislature is presumed not to make any far-reaching changes in the existing law without making itself amply clear and in the present case the Act only purports to clarify the law and has provided a saving clause in Section 2, keeping all existing grounds of dissolution intact. It may also be pointed out that clause (vii) deals only with respect to the option of puberty of a woman while the Muslim Law grants option of puberty not only to a girl but also toa boy whose marriage had been performed during his minority by his guardian. While, therefore, I agree with the learned District Judge that clause (vii) by itself does contemplate only repudiation after fifteen, I am satisfied (hat this clause does not exhaust the whole of the right which a Muslim woman has with respect to a marriage performed by a guardian before the attainment of puberty, and that all rights of dissolution by exercise of the option of puberty available under Muhammadan Law are intact." So it is clear and in our opinion the repudiation of marriage in the exercise of the option of puberty is still available at the age of puberty earlier than sixteen years under the Muhammadan Law provided the party concerned takes upon its own self to prove that it attained the age of puberty any where before the sixteenth year. There is no doubt as given in the Explanation to Para . 251 of Mnbammadan Law by D.F. Mulla the- puberty is presumed in the absence or evidence on completion of the age of fifteen years. The puberty can still be proved if it sets in earlier. But in no case it can be held that a marriage can be repudiated at any age after it is entered. The concept of repudiation is akin to maturity. As discussed above either the righi as to the repudiation can be exercised at the age of sixteenth as according to aforessaid clause (vii) there is no necessity of proving the puberty or at the age when puberty is achieved where the onus to prove the puberty will lie upon the person who repudiates marriage This is so since it involves the undoing of a contract of, marriage entered into either by a father or a guardian on one's behalf, therefore, at the time. D of undoing the same a female is to be a sui juris in matrimonial sense. It is a juncture where she is capable of entering into a contract of marriage of her own i«. where she has the capacity to accord consent without the c aid of another. The achievement of puberty developes a legal capacity (either to marry or to undo marriage where it has not. been coosumated. 9. In this case it was averred in the plaint by respondent No. 2 that in case an attempt was made otherwise to negative the other facts alleged in the plaint "then in the exercise of her right of option of puberty she treats the marriage as repudiated." Such a statement tantamount to saying as well that she is capable of exercising the right of option of puber ty. The case of the appellant before the learned Judge Family Court was as is also set out in ground (a) to this appeal that as per entries in the nikah nama the age of Maqsood Bibi on the date of Nikah viz 30-1 1982 was 1? years and as such the marriage was contracted willingly and was a valid marriage. No concrete evidence was produced at the trial to prove that her age at the relevant time was 13/14 years and not 17 years. The entry in the nikah nama regarding the factum of age would have prevailed and the marriage was not dissolvable on the ground of puberty. So it was never the case of the appellant before the trial Judge that she had not attained the age of puberty. Had he done so then an issue would have been necessarily raised placing the onus on respondent No. 2 and she (would have with all the probabilities come out with some extra-proof apart (from her claim in the plaint. Therefore the appellant cannot be allowed toPraise his case on the ground which was not taken before the learned Judge (Family Court. There is no dearth as to the instances in Muslim Fiqah that certain females have been chieving the puberty even before the age of fourteen years. In view of the absence of the plea before the learned(judge Family Court which is being raised now, at least a writ cannot be Jissued and specifically so when respondent No. 2 has in the meantime Ire-married, therefore, this Intra Court Appeal is dismissed but there is no 'order as to costs in the circumstances of the case. (TQM) Appeal dismissed.
PLJ 1985 Lahore 214 PLJ 1985 Lahore 214 Present: gul zarin kiani, J IRSHAD AHMED and 6 OthersPetitioners '? versus ABDUL HAMID and 4 OthersRespondents Writ Petition No. 3639-1984, heard on 17-2-1985. (i) Urban Rent Restriction Ordinance, 1959 (W. P. Or. VI of 1959)
S«. 13 & IS read with Provisional Constitution Order, 1981 (CMLA's 1 of 1981)Art. 9Eviction orderAppeal againstFind ing of factsChallenge to Writ jurisdiction Interference in Court of appeal after taking due notice of evidence, returning finding in proper appreciation of sameHeld : Such finding of fact not to be open to scrutiny in constitutional jurisdiction. [P. 2ll]A (fi) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959) Ss. 13 & 15 read with Provisional Constitution Order, 1981 (CMLA's 1 of 1981) Art. 9 Eviction order-Appeal against Error of lawGround for interference in constitutional jurisdiction- Additional District Judge committing error of law in excluding copy of FIR (containing certain admissions) from its considerationHeld : Such error to open doors for interference in constitutional jurisdic tion. [P. 2L9]E (ill) Document - -Mode of proof ofObjection relating toFailure to raiseEffect ofHeld : Objection to mode of proof, when not raised at proper time, same not to be reserved to be taken subsequentlyRespondent raising no objection, at time of tender and marking of document-Held : Objection relating to mode of proof once waived, same not to be reagitated. [P. 217]B (iv) First Information Report
Certified copy ofAdmlssibility of in evidenceHeld : FIR being public document, its certified copy to be admissible in evidence with out further proof. {P. 2f7]C PLD 1956 Lahore 293 rel. (v) Writ jarisdictioa- Interference inAdditional District Judge omitting to consider piece of evidence having bearing on decisionHeld : Interference in constitutional jurisdiction to be apposite in such like situations. [P. 218]D PLD 1962 (WP) Lah. 68 & PLD 1962 (WP) Lah. 172 ref. Ch. Nazeer Ahmad Cheerrta for Petitioners. Malik Muhammad Majid. Advocate for Respondents. Date of hearing : 17-2-1985. judgment This is an application under Article 9 of the Provisional Constitution Order,1981, for issue of a writ of certiorari at a writ of tike nature, directed against the reversing order dated 18-4-1984 of learned Additional District Judge, Gujrat, setting aside order dated 31-3-1982 of learned Rent Controller ordering eviction of the respondents from the premises in dispute. Facts relevant for the decision of the present constitution petition are that Irshad Ahmad and others aoplied to Rent Controller for ejscsajent of Abdul Hameed and others from the property in dispute on the grounds, (i) default in payment of rent, (ii) subletting of the premises by Abdul Hameed to Abdul Qadeer and others, (iii) reconstruction of the premises in accordance with the approved building plan, and (iv) personal requirement. Respondents, in their statement of defence, repudiated the contents of the eviction petition and pleaded absence of the relationship of landlord and tenants. Rent Controller framed following preliminary issue : "Whether the relationship of landlord and tenants exists between the parties". Peitioners produced Rebmat Khan (A. W.I) Abdul Aziz (A.W.2) and Irshad Ahmad petitioner appeared as his own witness in support of the ejectment petition. Approved building plan, receipts for payment of tax, assessment records and a copy of F.I,R. were also tendered in evidence. On the other band, Muhammad Boota, Bashir Ahmad in addition to Hameed appeared in defence, Rent Controller vide order dated 31-3-1982, relying on oral evidence and documents adduced in evidence, including the contents of the F.I.R.Ex.A.5/1 containing some admission contrary to the stand of Abdul Hameed that the property in dispute was his ancestral property, found in favour of the writ petitioners. An appeal was filed in the Court of learned District Judge, Gujrat, which was transferred to the file of the learned Additional District Judge. Court of appeal vide order dated 18-4-1984, accepted the appeal, reversed order of the Rent Controller, holding that the relationship of landlord and tenant did not exist between the parties. Ejectment petition, in consequence, was dismissed. Impugned order dated 18-4-1984 is under challenge at the instance of the unsuccessful party. Arguments addres ed by the learned counsel for the parties have been heard and with their assistance record has also been gone through, 2. Learned counsel for the petitioners vehemently contended that the evidence placed on record including the contents of the F.i.R. clearly showed that the relationship of landlord and tenant subsisted between the parties. It was stated that the documentary evidence brought on file by the petitioners was sufficient to prove their ownership and Abdul Hameed respondent's possession as tenant holding under the petitioners. On the other band, there was no evidence to show that the property vetted in Abdul Hameed. The main plank of defence was that Abdul Hameed, derived title to the property in dispute on inheritance, from his father. This fact was clearly belied by the crntents of the F.I.R.Ex. A.5 which contained an admission in unequivocal terms stating that the property in dispute was allegedly purchased by him from Abdul Malik its previous owner and predecessor-in-interest of the present writ petitioners. The cumulative .effect of the entire evidence brought on the record was rightly considered 'by the Rent Controller and issue of relationship of landlord and tenant was correctly answered. The reversing order passed by the learned Additional District Judge, did not take notice of the F.I.R. which was properly proved and exhibited as part of evidence without any objection from the opposite side. Identity of the maker of the F.I.R. was beyond dispute as Abdul Hameed had admitted in his deposition that it was be who had reported the matter to police and lodged the F.I.R. In this view of the matter, it was contended that learned Additional District Judge acted without jurisdiction and in violation of the law in holding the F.I.R. to be not proved properly,. .In this, the court of appeal, omitted to con sider a very important piece of evidence which went in favour of the writ petitioners and titled the scales in their favour. Omission to consider this very important piece of evidence having bearing on the issue of relationship of landlord and tenant, has clearly prejudiced the approach of the court of appeal. Copy of the F.I.R. was put in evidence, without any objection from the opposite side. The fact of the making of the F.I.R. was ad mitted by Abdul Hameed. In this view of the matter, it was seriously contended that the learned Additional District Judge was in serious error in observing "It is pertinent to point out here that the Rent Controller has wrongly placed reliance on copy of F.I R.A.5/1 as it was not proved by its author (A.S I.)." Learned counsel for the respondents in exercise of his right of reply, argued that the evidence on record was hardly sufficient to prove that the necessary relationship of landlord and tenant, existed The learned Additional District Judge contrary to the statement of law in P. L. D. (956 Lah. 293 omitted Exh. A-5/1 from his consideration Peti- __ -tioners, were entitled to the opinion of the Court regarding the admission made in the F. I R Exh. A-5/1 and its legal results. Learned counsel for f the respondents contended that even if this document had been considered by the Court, result would have been not materially different. Admission at the most showed that Abdul Malik was the owner of the property in dis pute from whom Abdul Hameed has purchased it. Omission from consi- ^ deration, therefore, has not prejudiced the petitioners in any manner. With jjjf this part of the argument, I da not find myself in agreenunt. Rent Con troller, on cumulative assessment of the entire evidence including the con tents of the F. 1. R. found i« favour of the writ petitioners. If copy of the F. I R. had not been excluded from consideration by the learned Addi tional District Judge the result wa a matter of guess. Precisely, speaking if the F, I. R had been considered alongwith the other evidence, the result may have been different from the one arrived at in the impugned order by the learned Additional District Judge. The question then arises \q»-^ whether omission to consider a piece of evidence having bearing on the decision, lays the case open for interference in constitutional jurisdiction. In more than one decision, this Court has observed that in such like tituations. interference in coT?titutioial jurisdiction is aoocHits.Ia SaSeb Mohammad v. Muhammad Ros and others [P. L D, 1962 (W.P.) Lahore 68], a Bench decision, this Court observed : ~"Occasion for exercise of writ jurisdiction with a vitw to setting aside finding on questions of fact can arise only on very limited 'grounds. The circumstances in which a finding of fact given by a tribunal of exclusive jurisdiction in a matter may be rendered in effective by the High Court in the exercise of its writ jurisdiction would be either that the finding has been given on the basis of no evidence at all or the evidence has been so completely misread that the finding cannot be based on evidence." In Sardar Sber Muhammad v. Rao Bashir All Khan and another [P. L. D 1962 (W.P.) Lah. 172] a decision by Shabbir Ahmad and Anwarul Haq, J/., the court observed : "A writ of certiorari can issue only on a very limited ground and though it is undeniable that because of the supervisory power vested in it the High Court may quash the orders of any other tribunal judicial or quasi judicial, if the impugned order is without jurisdiction or is based on no evidence at all or the evidence has been misread yet the jurisdiction though super visory, cannot be altered into appellate jurisdiction. It is open to an appellate Court to come to the conclusion that though the in ferior tribunal had given a finding on wrong assumption, the find ing would have been precisely the same if the assumption had been correctly made but is not within the province of a court called upon to exercise writ jurisdiction to say that the material on the record even after excluding the material which was wrongly taken into consideration, was sufficient for the finding that was given." Side note (b) of the aforesaid report reads : "If a tribunal of special jurisdiction has taken into consideration a matter which cculd not at all be taken into consideration then occasion for exercue of writ jurisdiction arises and the order of such tribunal can be sought to be declared inoperative by a writ petition." In yet another case, N. M. Kbtn and another v. Chief Settlement & Rehabilitation Commissioner Pakistan and another [P L. D. 1962 (W.P.) Lab. 468], late Snabbir Ahmad A. C. J. as his Lordship then was, observed : "Ordinarily a court called upon to issue a writ has to accept as correct the findings of fact given by a tribunal of exclusive juris diction. This, however, does not mean that the findings of fact given by a tribunal of exclusive jurisdiction are sacrosanct under all circumstances. If a tribunal of exclusive jurisdiction had when arriving at a finding of fact, misread the evidence, or had considered evidence, which could not have been considered at all or had failed to consider evidence, which it was bound to consider or' should have considered the finding oj the triiunal of exclusive jurisdiction cannot claim immunity from examination by the Court which possesses power to issue a writ against orders of a tribunal of exclusive jurisdiction." Court of appeal in view of the law laid down in P. L. D. 1956 Lah. 293 could omit from its consideration copy of the F I. R. A-5/1. Exclusion of this piece of evidence from consideration has affected the final conclusion arrived at bv the court below. Rent Controller had rightly considered this piece of evidence brought on record in accordance with law. Looking at the matter from this angle, I am of the opinion that the learned court below had committed an error of law apparent on the face of the record in excluding the copy of the F. 1. R. containing certain admissions from its consideration. This error has opened the doors for interference in consti tutional jurisdiction. Appeal accordingly has not been disposed of in accordance with law. 4. In the result of the aforesaid discussion, writ petition is allowed, impugned order dated 18-4-1984 passed by the learned Additional District Judge, Gujrat is set aside and declared to have been made without lawful authority. The result is that the appeal filed by the respondents, shall be deemed to be pending requiring decision on merits. I am told that the learned Additional District Judge who decided the appeal has since been transferred from Gajrat. Case is remitted to the learned District Judge Gujrat for decision of ths appeal afresh in accordance with law after affording opportunity of bearing to the parties concerned. No order as to costs. (SBR) Petition allowed.
PLJ 1985 Lahore 226 PLJ 1985 Lahore 226 [ Rawalpindi Bench] Present : lehrasap khan, J MAZHAR HUSSAINPetitioner .versus PROVINCE OF THE PUNJAB, through Chief Secretary Government of Punjab, Lahore Respondent Writ Petition No. 286 of 1984, decided on 28.4-1985. (i) Punjab Civil Service (Judicial Branch) Holes, 1962
Rr. 4 & 5 read with Punjab Civil Servants Act, 1974 (VIII of 1974)Ss. 4 & 23, Punjab Civil Servants (Appointment and Condi tions of Service) Rules, 1974R. 16, Punjab Public Service Commis sion Ordinance, 197& (XII of 197«)- Ss. 7 & 8 and Government of Punjab Rules of Business, 1974R 20Civil JudgeAppointment to post ofPublic Service CommissionRecommendation ofEffect ofHeld : Appointment to post of Civil Judges to be made by Government on recommendation of Punjab Public Service Commission based on result of competitive examination to be conducted by CommissionHeld further : Appointing authority (though generally) to act upon advice of Public Service Commission, (nevertheless) Government in exercise of its powers as appointing authority to be empowered not to appoint candidate as Civil Juage if he be not found eligible for such appointment in spite of recommendation of Commission. [P. 23Q]A (ii) Punjab Civil Servants (Appointment & Conditions of Service) Rides, 1974 -Rr. 18, 19, 20 & 21 read with Punjab Civil Servants Act, 1974 (V1I1 of 1974) Ss. 4 & 23Initial appointmentDisqualification forAffiliation with political party Effect ofCandidate suffering from any of shortcomings provided in rules contained in Part 111 of Civil Servants (Appointment & Conditions of Service) Rules, 19 74 Held : Government as appointing authority to (be competent to) lawfully refuse to appoint such person to civil post despite recom mendation of Public- .Service CommissionGovernment, however, not to act arbitrarily and not to be competent to exercise its powers as appointing authority in disregard to provisions of Punjab Civil Servants Act, 1974 and rules made thereunder Affiliation with political party, held further, to be no disqualification in accordance with rules governing initial appointment. [P. 231)B (ill) Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1914 Rr. 18, 19 r 20 & 21Initial appointment Disqualification for Affiliations with political partyEffect ofHeld: Affiliation with poli tical party prior to entry into Government service being no disquali fication, person otherwise qualifying prescribed competitive examina tion and recommended for appointment by Public Service Commis- »ion not to be refused appointment. [P. 231JC&I) 1(iv) Punjab Poblic Service Commission Ordinance, 1978 (XII of 1978) ~S. 7Public Service Commission Recommendation byFailure to act uponSuperior Courts-Interference by Held : Status of Public Service Commission though that of consultative or advisory body and its recommendation though advisory in nature, appointing authority to be under obligation to act in accordance with law and relevant rulesHeld further : Deliberate or flagrant disregard of law and relevant rules to attract power of judicial review vesting in superior Courts. [P. 23l]£ (v) Provisional Constitution Order, 1981 (CMLA's 1 of 1981) -
Art. 9 read with Punjab Civil Servants Act, 1974 (VIII of $974)Ss. 4 & 23, Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 R. 16, Punjab Public Service Commission Ordinance 1978 (XII of 1978)Ss. 7 & 8 and Punjab Civil Service (Judicial Branch) Rules, 1962Rr. 4 & 5Public Service CommissionRecommendation ofAppointing authorityRefusal to act uponOrder ofChallenge to Petitioner though qualifying pres cribed competitive examination and recommended for,appointment by Public Service Commission, Government refusing to appoint him as Civil Judge on ground of his having affiliation with political partyHeld : Refusal being not warranted by Punjab Civil Servants Act, 1974 and relevant rules made thereunder, action of Govt. to be regarded as without lawful authority and of no legal effect. [P. 231JF Mr. Bashir Ahmed Antari & Mr. Munir Bashir Ansari, Advocates for Petitioner. Dr. G. S. Khan, Advocate for Respondent. Date of hearing : 23-4-1985. judgment To fill 67 temporary posts of Civil Judges (formerly P. C. S. Judicial Branch) in the Province of Punjab, a public notice was got published by the Punjab Public Service Commission, Lahore in the daily Pakistan Times in its issue dated 1-6-1982, inviting applications from candidates fulfilling the requisite qualifications. The posts were, of course, to be filled as a result of competitive examination to be held by the Punjab Public Service Commission, on whose recommendations the appointing authority, viz. the Government of Punjab was to make appointments. 2. The petitioner Mr. Mazhar Hussain who is a practising Advocate at Rawalpindi and is holder of a degree of M. A. LL.B , and w»$ other wise also qualified to appear at the competitive examination, submitted his application on the prescribed form to the Punjab Public Service Commission in response to the aforementioned public notice His candidature was accepted by the Commission and he was therefore, asked to appear at the competitive examination and was allotted Roll No. 412 The petitioner thus appeared at the competitive examination. His name figured in the list of 82 candidates who were declared successful in the written examination. The list was published in the press on 10->1983. Subsequently the petitioner appeared at the phychological test on 21-7-1983 and for viva voce test on 31-7-1983. The combined result of the written examination, phychological and viva voce tests was published by the Commission in the daily Press on 1-9-1983. The list of successful candidates contained the names of 66 per sons. Petitioner's name also appeared in the said list and he secured 44th position. He was asked to appear before the Standing Medical Board at Holy Family Hospital , Rawalpindi , on 23-10-1983, for his medical examina tion. He was examined by the Medical Board on the aforesaid date and declared medically fit. 3. Appointments of the candidates as Civil Judges were made by the Government of Punjab vide its notification No. 1-12-80-SOS (IV) Vol. II dated 1-12- 983. hrough this notification, 64 persons were appointed as Civil Judges. The name of the petitioner did not figure in this notification. He made enquiries which revealed that ue to his alleged affiliations with a political party he was- not considered suitable for appointment as a Civil Judge. 4. The action of the Government whereby the petitioner has not been appointed as Civil Judge despite of his having secured 44th position in the competitive xamination held by. the Punjab Public Service Commission, has been assailed by the petitioner through the present constitutional peti tion. 5. It has been urged that the petitioner qualified in every respect for appointment as Civil Judge and according to the result compiled by the Public Service ommission, he secured 44tb position amongst 66 successful candidates for 67 vacancies. He was recommended by the Punjab Public Service Commission for ppointment as Civil Judge. He also was declared medically fit by the Standing Medical Board. He was, therefore, entitled to be appointed against the available acancy. The act of the respondent Government in not appointing him as a Civil Judge was discriminatory, mala fide and nugatory, vis a-vix the very purpose behind olding of compe titive examination. It has been maintained that the respondent was obliged to appoint all persons who were declared fit for appointment and recom mended as such by the Punjab Public Service Commission. 6. Government of the Punjab in the parawise comments submitted that the petitioner was not appointed as a Civil Judge because due to strong olitical affiliations he was not considered fit/suited for a sensitive judicial assignment and that it was not obligatory upon the Government, the appointing authority to ppoint the petitioner as a Civil Judge because he had qualified the competitive examination. In spite of the result of the competitive examination conducted by the ubjab Public Service Com mission, the discretion of the appointing authority still remains available to determine the suitability of the candidates for a particular post 7. It transpires from the considered analysis of the facts detailed above, that the points for determination involved in the instant constitu tional petition are : (a) whether the Government as appointing authority is under obligationto appoint a candidate who has qualified the competitive examina tion conducted by the Punjab Public Service Commission, has attained such a merit as a result of the competitive examination which entitles him to the appointment and has also been found suitable for appointment and recommended as such by the Punjab Public Service Commission ; (b) If not, whether the respondent is legally justified in not appointing the petitioner as Civil Judge in spite of the 'fact that he secured Rule ' j of the Government of Punjab Rules of Business 1974, pro vides that the advice of the Public Service Commission shall ordinarily be accepted by the Department in all matters where it is obligatory to consult the Commission under any law or any Rules or Regulations for the time being in force. It is further provided that if it is proposed not to accept the advice of the Commission, the case f ball be submitted to the Chief Minister through the Services, General Administration and Information Department, which may give an opportunity to the Public Service Commission of further justifying its recommendations before a final decision is taken. Where, however, the Chief Minister does not accept the advice of the Public Service Commission he shall inform the Commis sion accordingly. The advice referred to in rule 20 of the Government of Punjab Rules of Business 1974, perhaps also pertains to advisory functions of the Commission as provided in section l(b) of the Punjab Public Service Commission Ordinance, 1978, and does not relate to the functions of the Commission pertaining to initial appointment. Recruitment to the posts of Civil Judges in the Province of the Punjab is regulated by the Civil Service (Judicial Branch) Rules, 1962. The appointing authority as per these Rules (rule 4 ibid) is the Government. Rule 5 deals with the method of recruitment and it provides that appointments to the Service shall be made by initial recruitment on the recommendation of the Commission i.e. the Punjab fublic Service Commission based on result of a competitive examination conducted by it in the subjects specified in the appendix to these rules. 9. It appears from the close scrutiny of the relevant provisions of the Punjab Civil Servants Act 1974, the Punjab Civil Servants (Appoint ment and Conditions of Service) Rules, 1974, the Punjab Public Service Commission Ordinance 1978, the Government of Punjab Rules of Business 1974 and the Punjab Civil Service (Judicial Branch) Rules, 1962, that appointment to the posts of Civil Judges is to be made by the Government on the recommendation of the Pun jab Public Service Commission based on the result of a competitive examination to be conducted by the Com mission in the subject specified in the appendix to the Punjab Civil Service (Judicial Branch) Rules, 1962. It further transpires that the appointing ^authority viz. the Government in the matter of appointment of Civil Judge is to act upon the advice of the Public Service Commission. Never theless the Government in exercise of its powers as appointing authority is empowered not to appoint a candidate as Civil Judge in spite of the recommendation of the Commission if he is not found eligible for such appointment. For this purpose recourse can be bad to Part III of the Puniab Civil Servants (Appointment and Conditions of Service) Rules 1974, which deals with initial appointment. Under rule 18 ibid, a candidate for initial appointment to a post must possess the prescribed educational qualifications and experience and also must be within the age limit as laid down for the post. Under rule 19, no person is eligible for appointment to a post unless he is a citizen of Pakistan , provided that this restriction may be relaxed by the Govern ment in suitable cases. Similarly by virtue of rule 20, vacancies in various posts are required to be filled from persons domiciled in the Province of the Punjab . Rule 21 further provides that a candidate for appointment must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties A candidate who after such medical examination is found not to satisfy the requirements of rule 21 cannot be appointed. B 10. Affiliations to a political party is not a disqualification in accor dance with the rules governing the initial Appointment as contained in Part III of the Punjab Civil Servants (Appointment and- Conditions of Service) Rules, 1974. The Government as appointing authority can lawfully refuse to appoint a person to a civil post despite of the recom mendation of the Public Service Commission if he suffers from any of the shortcomings provided in the rules contained in Part III of the Punjab Civil Servants (Appoi ntment and Conditions of Service} Rules 1974. The Government, however, cannot act arbitrarily and cannot exercise its powers as appointing authority in disregard to 'the provisioof of the Punjab Civil Servants Act, 1974 and the Rules made thereunder vii the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Affiliations with any political part as regard to a post to be filled as, a result of competitive examination has little relevancy. Affiliations of a particular person with a political party before entry into a public service has not to be regarded as disqualification because the mJfQjat ae enters the public service he ceases to have any connection with any political party. Under the Government Servants (Conduct) Rules, 1966 (section 24) taking part in politics and elections is prohibited and this prohibition comes into play after a parson joins the public service. It has no rele vancy before his entry into public service. , Bringing of political influence directly or indirectly by a Government servant amounts to misconduct within the meaning of section 2(i)(d) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. These rules come into play alter a person joins a civil servici in the Province of the Punjab. 1L From the analysis of the relevant provisions of the law and rules governing the services in the Province it becomes evident that affiliations with a political party prior to entry into a Government service is not a disqualification and on this ground a person cannot be refused appointment if otherwise he has qualified the prescribed competitive examination and has been recommended by the Public Service Commission for appointment. 12. The foregoing discussion thus leads to the conclusion that although the status of the Public Service Commission is that of a consultative or a advisory body nd ts recommendations being only advisory in nature may not be acted upon by the appointing authority for lawful reasons but the appointing authority, particularly the overnment being a juristice person is under an obligation to act in accordance with law and relevant rules A deliberate or flagrant disregard of the law and he relevant rules would attract the power of judicial review vesting in the superior Courts. Under Article 9 of the Provisional Constitution Order, 1981 as also under rticle 4 of the Constitution of Pakistan, 1973, every act of the Government is required to be exercised lawfully and every individual has to be dealt with in ccordance with law, as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. 13. In the circumstances of the present case, as observed aboye,i refusal of the respondent-Government to appoint the petitioner as CivillF Judge in spite of his having qualified the prescibed competitive examination)and having been recommended for appointment by the Public Service Commission, is not warranted by the Punjab Civil Servants Act 1974 and the relevant. ules made thereunder. Such refusal is, therefore, unlawful and the impugned action of the Government in this behalf has to be regarded as without lawful authority and of no legal effect. It is ordered accordingly and the writ petition is thus allowed. The respondent- Government is directed to appoint the petitioner as Civil Judge on the basis of the result of his competitive examination. There shall, however, be no order as to costs, (TQM) Petition allowed.
PLJ 1985 Lahore 232 [Rawalpindi Bench] PLJ 1985 Lahore 232 [ Rawalpindi Bench] Present: khizar hayat, J CHANANI BEGUM-Petitioner versus MUHAMMAD SHAFIQ and 2 OthersRespondents Writ Petition No. 355 of 1985, decided on 18-5-1985. (i) Family Courts Act, 1964 (W.P. Act XXXV of 1964)-
Ss. 5, 12 & 14 read with Provisional Constitution Order, 1981 (CMLA's I of 1981)Art. 9 Maintenance-Right of Prompt dowerFailure to payEffect ofWife under no obligation to live with husband until payment of prompt dower to herMaintenance also not paid to such wife during period she remained separate from husbandAdditional District Judge, however, omitting to notice essential legal implications of such failure Held : Impugned judg ment of Additional District Judge to be declared, to be as without lawful authority. [P. 235JB (ii) Maintenance
WifeRight ofPrompt dowerFailure to payEffect ofHeld : Wife living separate from her husband without any sufficient justifica tion not to be entitled to claim maintenancePrompt dower not paid by husbandHeld : Wife to be competent to refuse herself to husband and to live separate from him until prompt dower be paid to herHeld further : During such separation husband to be duty bound to maintain wife. [P. 234]A PLD 1971 Lab. 866 & Munammadan Law by Sir Ronald Knyvet ref. (Hi) ProTisional Constitution Order, 1981 (CMLA's 1 of 1981) -Art. 9-See : Family Courts Act, 1964 (W.P. Act XXXV of 1964) Ss. 5, 12&14. (P. 235]fl Mr. M. Kowkab Iqbal, Advocate for Petitioner. Raja Muhammad Ibrahim Satti, Advocate for Respondents. Date of hearing : 18-5-1985. judgment In these two writ petitions No. 335 and 336 of 1984, it is prayed that the judgment of Additional District Judge dated 18-3-1984 be declared dispose of both the etitions as without lawful authority. This order shall they arise out of the same judgment. 2, Briefly the relevant facts are that the petitioner Mst. Chanani Begum and the respondent Muhammad Rafique who are cousins inter se were married to each other on 20-7-1978 in accordance with Muhammadan rites, on prompt dower of Rs. 5.000/ The spouses lived amicably till March, 1981. whereafter dispute arose between them and the petitioner shifted to her parents' house and instituted two separate suits, one for the recovery of prompt dower and maintenance allowance and the other for dissolution of marriage on the grounds of cruelty, non-payment of maintenance, misappropriation of her ornaments by the respondent besides his associating with women of ill repute. The respondent resisted these suits and also filed a suit for restitution of conjugal rights. He pleaded that the petitioner had left his house in the company of her mother on 3-3-1981 in his absence and took away all the ornaments and clothes belonging to him and' despite repeated efforts on his part she refused to live with him without any justification. Regarding dower he pleaded that the petitioner by executing document Ex-P.l had since, relinquished her claim to dower. All the three suits were consolidated by the trial Judge who framed and tried the following issues : the decree for restitution of conjugal (1) Is the plaintiff entitled to rights ? (2) Is the defendant entitled to the dower amount and the maintenance allowance ? If so, at what rate and since when ? (3) Has the defendant relinquished the prompt dower and maintenance ? (4) Has the planitiff maltreated the defendant ? (5) Does the plaintiff associate with women of ill repute ? (6) Has the plaintiff misappropriated the ornaments of the defendant ? (7) Has the plaintiff failed to provide maintenance to the defendant for more than two years ? (8) Relief. The learned Judge Family Court on elaborate analysis of the evidence on record decided issue Nos, 2 and 3 to 7 against the petitioner and consequently dismissed both of her suits but finding issue No. 1 in the affirmative decreed respondent's suit for restitution of conjugal rights vide consolidated judgment dated 24-9-1983. Feeling aggrieved the petitioner filed three separte appeals in the Court of Additional District Judge, Rawalpindi, who while aflSrming findings of learned Family Judge on issue Nos 1 and 4 to 7 reversed the same on issue No. 3 and partly decided issue No. 2 in favour of the petitioner saying that the petitioner was entitled to recover a sum of Rs. 5,000;- from the respondent as her prompt dower -but she was not entitled to the maintenance allowance for she had been living separate from the respondent/ husband without sufficient cause. The respondent did not agitate against this decision but the petitioner feeling still aggrieved invoked Constitutional jurisdiction of this Court. In Writ Petition No. 335/84 she has challenged the dismissal of her suit for dissolution of marriage and the decree passed against her in respon dent's suit for restitution of conjugal rights and in Writ Petition No 336/84 she has challenged the findings of the Courts below holding her to be dis-entitled to the maintenance allowance. 3. It is argued on behalf of the petitioner that according to the finding of Addl. District Judge the respondent had not paid prompt dower of the petitioner therefore it follows that the petitioner (wif ) under the law could refuse to live with ,the respondent till such time the dower money was paid and that for such period she could also claim maintenance. Further argued that admittedly the respondent (husband) herein did not maintain the petitioner for two years, therefore, learned Additional District Judge, while decreeing petitioner's suit for recovery of dower money must have also granted decree for dissolution of marriage and that by having denied to grant such a decree to the petitioner learned Addi tional District Judge has failed to exercise jurisdiction vested in him. In support of his contention he relied on Tabira Begum's case [PL D 1971 Lahore 866 (D.B.)]. Learned counsel further referred to Gul Nawaz Khan's case (PLD 1965 Dacca 274) and uiged thai even on the ground of non payment of prompt dower the petitioner was entitled to decree of dissolution of marriage. On the other hand, learned counsel for the respondent submitted that non-maintenance of the petitioner (wife) on his part cannot form a legal ground for dissolution of marriage particularly because the respondent was under genuine impression that she had rel nquished her claim to dower under document Ex-P. 1 which has been found by the learned trial Court to be genuinely executed by the petitioner, therefore, his failure to maintain the petitioner cannot be taken as wilful and consequently the marriage cannot be dissolved on this ground. Learned counsel has submitted' that the respondent is even today prepared to pay up the prompt dower and is ready to maintain her provided she agrees to live with him. 4.. In the Dacca case relieved upon by the learned counsel, the spouses had mutually agreed and executed a Rabin nama to the effect that if the husband failed to pay prompt dower and maintenance then the wife would be entitled to decree of dissolution of marriage by way of Talak-e- Tafweez. In the instant case no sucb agreement exists between the parties so this precedent is of no avail to the petitioner. 5. It is true that wife cannot claim maintenance if she lives separate Ifrora her husband without any justification but it is equally well recognized It hat a wife can refuse herself to the husband and also live separate from Ibim until ths prompt'dower is paid by the husband and that during such (separation the husband is duty bound to maintain her. A reference may be made with advantage to section 48 of Muhaniinidan Law by Sir RonaldKnyvet which reads as under : "Section 48. In addition to her right to recover the prompt dower by regular suit, the wife may refuse to admit her husband to sexual intercourse, to obey his orders, or even to live in the same house with him, so long as it is unpaid ; and this without forfeiting any right to be maintained at his expense, or her right of inheritance as his wife. But it seems to be now settled that a suit for restitution is maintainable in case of refusal after sexual intercourse has once taken place with her free consent, but the decree may be made conditional on payment of the prompt dower." In Tahira Begum's case (supra) a Division Bench of this Court on thil point observed as under " in Muslim Law it is the duty of the husband to maintain his wife. She is rot entitled to maintenance when she refused to go to her husband's house without suffic'ent cause or is otherwise disobedient. However, if the refusal or disobedience is justified by nonpayment of prompt dower or she leaves the husband's house on account of his cruelty, the husband is not absolved of the duty to rraintam the wife because separate maintenance can be claimed by the wife when the husband has turned her out or the treatment or mis-understanding between them is such that it is irremediable and her return to the husband's house is likely to give rise to fresh troubles and disputes." The learned Appellate Court which has held that promt dower of the petitioner is still unpaid seems to have omitted to notice its essential legal implications as pointed out in foregoing paragraph that the petitioner in the circumstances was under no obligation to live with the husband and yet the husband (respondent) was dutybounJto maintain'her. Thus it[g could be held that the petitioner was living apart from the husband with-" out justification, hence not entitled to any maintenance. In this perspec tive, learned Additional District Judge was required to consider the finding! of the trial Judge on issue No. 7 pertaining to non-maintenance of the petitioner for over 2 years, which has not been done and certainly const-] tuted non-exercise of jurisdiction by learned Additional District Judge. Consequently, I declare the impugned judgment as without lawful authority, with the result that all the three appeals of the petitioner would be deemed to be still pending before Additional District Judge, Rawal pindi, who shall make fresh decision in the light of the above observation. (TQM) Writ issued.
PLJ 1985 Lahore 235 PLJ 1985 Lahore 235 Present : lehrasap khan, J ILAM DIN and AnotherPetitioners versus ABDUL MAJID and 2 OthersRespondents Writ Petition No. 4044 of 1984, heard on 22-12-1984. (i) Civil Procedure Code, 1908, (V of 1908) _S. 149Deficiency of court feePower to make upRespondent not quality for any contumacy, mala fide or negligence in matter of payment of Court feeTrial Court allowing respondent to make up deficiency by certain dateContention that Court not to be compe tent to lawfully permit respondent to make good deficiency after expiry of limitationHeld : Question of limitation not to arise in case.tP. 238J/4 PLJ 1984 SC 94 & PLJ 1983 SC 150 ref. (ii) Civil Procedure Code, 1908 (V of 1908)
Ss. 149 & 115Deficiency of court feePower to makeup- Exercise ofRevisionCompetency ofTrial Court allowing plain tiff to make good eficiency in court fee by date prescribed by such courtHeld : View of revisional court that order passed by trial court not to amount to "case decided" to e legally sound. [P. 238]fl (iii) Provisional Constitution Order, 1981 (CMLA's 1 of 1981)
Art. 9 read with Civil Procedure Code, 1908 (V of 1908)Ss. 149 & 148Deficiency in court feePower to make upExercise of RevisionOrder inChallenge toHeld : No Constitutional peti tion to be legally competent against order passed by trial court in pre-emption suit directing plaintiff to make good deficiency in courtfee in exercise of jurisdiction vesting in such court under Ss. 149 & 148 of CPC. [P- 238JZ) (IV) Civil Procedure Code, 1908 (V of 1908)
Ss. 149 & 148 See: Provisional Constitution Order, 1981 (CMLA's 1 of 1981)Art. 9. [P. 238]C Mr. S. Jqbal Haider Zaidi, Advocate for Petitioner. Mr, Ghulam Rasool Mehr, Advocate for Respondent No. 1. Nemo for Respondents 2 & 3. Date of hearing: 22-12-1984. JUDGMENT Agricultural land, the subject-matter of this litigation, was purchased by the petitioners through registered sale-deed dated 31-3-1975. The sale was pre-empted by Abdul Majid respondent No. 1 (hereinafter referred to as 'the respondent') on 27-3-1976, that is, only five days before the expiry of the p:riod of limitation. The respondent valued the suit for the purpose of court-fee and jurisdiction tentatively and paid a court fee stamp of Rs. 150/ only. On 29-11-1976, the trial Court directed the respondent to pay the deficiency in the court-fee amounting to Rs. 937-50 by 21-12-1976. On 21-12-1976, however, the court reviewed its earlier order and found that in fact the deficiency was only of Rs. 412/- which was directed to be paid by 27-1-1977. This order was duly complied with. Subsequently for want of pecuniary jurisdiction the case was referred to the learned District Judge, who entrusted the same to the court of the learned Senior Civil Judge, vide his order dated 2-7-1977. 2. On 15-10-1980, the petitioners (vendees) filed a revision against the order dated 29-11-1976, passed by the trial Court, whereby he directed the respondent to make good the deficiency in the court-fee. It was mainly urged that after the expiry of the period of limitation, the pre-emptor could not lawfully be permitted to make good the deficiency in the court fee. His plaint in the circumstances should have been rejected. The learned Additional District Judge, vide his judgment dated 16-5-1984, dismissed the revision. He considered the merits of the case and also observed that the trial Court's order directing the pre-emptor to make good the deficiency in the court fee did not amount to " a case decided" and, therefore, no revision against such an order was competent. 3. The aforesaid order passed by the learned Additional District Judge on 16-5-1984, has been assailed herein by invoking the extraordinary writ jurisdiction of this Court. 4. It has been urged that the learned Additional District Judge failed to exercise revisional jurisdiction vesting in him illegally and that the pre-emptor who wanted to enforce the predatory rights was not entitled to e ercise of discretion in his favour and could not be permitted to pay the deficient court-fee after the expiry of the period of limitation. 5. It has been mainly argued on behalf of the petitioners that after the expiry of the period of limitation a pre-emptor could not lawfully be permitted to make ood he deficiency in the court-fee. His plaint in such circumstances should be rejected under Order VII rule II C.P.C Reliance in this behalf has been placed on st. alayat Khatun vs Khalil Khan and another (P L J 1979 S.C. 108). In this case it was held that a plaintiff in a pre-emption suit who was guilty of contumacy, positive ala fides or lack of bana fides was not entitled to any indulgence and could not be allowed time to make good the deficiency in the court-fee, in this case it was oticed that plaint was filed with a court-fee stemp of Rs. 2/- only. The court allowed extension in time to the plaintiff to make up the deficiency by a articular date but the plaintiff failed to comply with the order of the court within the prescribed time withoJl any valid reason to the satisfaction of the trial Court. It as, therefore, held that the trial Court was justified in rejecting the plaint. The circumstances of the present case are altogether different. The respondent made up the deficiency in the court-fee by the time allowed by the Court He originally had paid a court-fee of Rs. ISO/-. He cannot be held liable for contumacy, culpable negligence or positive mala fides. In Mst. Parveen vs. Mst. Jamsheda Begum and another (P.L.J. 1983 S.C. 150), it was observed : "The learned trial Judge was fully competent to grant time under section 149, C.P.C , to the plaintiffs for supplying the court-fee. Once having done so and the respondents having complied with the order passed under section 149, C.P.C., the plaint, it is provid ed in the said section, shall be deemed to have the same force and effect as if such fee had been paid in the first instance. Thus the question of the bar of limitation would not at all arise. The argument of the learned counsel thus has no force. It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII rule 11, C.P C., on the mere discovery that the claim was under-valued, unless under clause (b) of rule II, the plaintiffs having been required bv the court to correct the valuation within a time specified by the court had failed to do so." Walayat Khatun's case was considered by their Lordships and it was observ ed that the same was not relevant. Similarly, in Shabna Khan vs. Aulia Kban and others (P.L.J. 1984 S.C. 94), it has been observed : Atpage 153. At page 97. "It is nowhere required of a plaintiff by any law, at least none has been cited, that before filing a suit for pre-emption he must obtain the statement of net profits and further that if he fails to do so, this necessarily will operate against him when considering the question of entertaining the court fee, if it is supplied after the institution of the suit, on (or even without) an objection from the defendant or Court. An example h^re would illustrate the point. Supposing the relevant net profits of the land are wrongly assessed or not assessed at all. or if assessed the statement is not made available to the plaintiff within the period of limitation, or even if he obtains the statement it appears to him to be tainted with overwriting or forgery and he does not want to take any risk and it is not filed. Here the law of limitation or fr>r that matter per-emptiou does not in any way provide that if and when the plaintiff files a suit without the statement of net profits it shall be deemed that be was acting illegally or dishonestly." The circumstances of the present case are identical to that of the precedent ! cases cited above and, therefore, the question of limitation would not arise in the present case when the respondent is not liable for any contumcy, mala fides or negligence in the matter of payment of court-fee. Thus on merits no exception can be taken to the impugned judgment. 6. Regarding the respondent's plea that the finding of the learned Additional District Judge to this effect that the order of the trial Court allowing the pre-e/nptor to ake good the deficiency in the court-fee did not amount to'a case decided' within the meaning of section 115 of the Code of Civil Procedure were not legally in order eference may be made to the case of Syed Qisim Stub vs. Mu Bibian and others [P L D. 1962 (W P.) Peshawar 156], wherein it was held that the ecision given by the Senior Sub Judge as to the amount of court fee did not amount to a case decided and was, therefore, not revisable. Similar view was expressed in a»al Mrhaimiid vs. Mutratn nil Usman (P.L.D. 197() Lahore 560) In H. H. Iqbal Began, Junior B;gtim Ktuirpur and another vs. Ab Sam ad [P.L.D. 1951 VV.P) Lihjrs298i, it was ruled that where a decision on the question of court-fee has been given by the trial Court in favour of the plaintiff, it was not open to the defendant to apply for revision under section 115 of the Civil Procedure Code. 7. The learned counsel for the petitioners has not been able to cites any authority to support his'contention that the interim decision of the trial Court on the question of court-fee could be challenged in revision. In the light of the above discussion it is concluded that in the circum- HP stances of the present case, it cannot be said by any stretch of imagination that the learned Additional District Judge failed to exercise jurisdiction. His view that che order passed by the learned trial Court directing the plaintiff to make ood he deficiency in the court-fc? by a date prescribe t>y such court did not amount to 'a case decided' is legally sound It may lso be observed that, as a matter of fact, no constitutional petition is legally competent against an order passed by a trial Court in a pre-emptionsuit directing a plaintiff to make good the deficiency in the court-feeexercise of jurisdiction vesting in such court under sections 149 and 148 of the Code of Civil Procedure. In Muhammad Yasin etc. vs. Fajar Alt, etc. (NLR 1984 Civil 689),it was held that concurrent orders of the courts below holding that the plaint had been correctly assessed and the plaintiff preemptor had paid the requisite court-fee were immune from being interfered with by the High Court in exercise of its writ jurisdiction. 8. The upshot of the above discussion is that there is no substance in the present writ petiton which is, therefore, dismissed with costs. (SHR) Petition dismissed.
PLJ 1985 Lahore 239 PLJ 1985 Lahore 239 Present ; abdul shakurul salam, J ZAHOOR AHMED and 5 OthersPetitioners versus MANZOOR HUSSAIN and 2 OthersRespondents Writ Petition No. 2122/85, decided on 19-5-185. Civil Procedure Code, 1908 (V of 1908)
O. XVI, R. 1List of witnessesNon-submission ofEffect of Respondent debarred to produce evidence because of non-submission of list of witnessesSuch order of trial court however, set aside in revisionHeld: Respondent to be entitled to produce oral as well as documentary evidence. [P. 240]<4 PLJ 1980 Lahore 441 .ref Mr. M. N. Javaid, Advocate for Petitioner. Date of hearing : 19-5-1985. order Respondent No. 1 filed a suit for declaration that he was a legitimate son of one Muhammad alias Muhammad Khan and ancestor of the petitioners. For non-submission of the list of witnesses within seven days from the date of framing of issues as required under Order XVI Rule 1 C.P.C., his evidence was closed by the learned trial Court vide order dated 26-5-1977. His revision was dismissed by the Additional District Judge, Gujranwala on 9-3-78. On his Constitutional Petition No, 1995 of 1978 the orders were quashed on .16-1-1983 in view of the judgment of the Full Bench reported as Ghulam MurUzi vs. Mohammad llyas and 3 others (PLJ 1980 Lahore 447) and the case was remanded to the trial Court for further proceedings in accordance with law. When it was taken up by the learned trial Court and the respondent No. 1 wanted to produce documentary evidence, the petitioners objected thereto in view of the earlier order of the trial Court under Order XVII Rule 3 C.P.C. dated 17-5-79 by which the documentary evidence to be produced by the respondent was closed. The objection was, however, over-ruled by the learned trial Court on 27-10-1984. The petitioners challenged this order by means of a revision petition which has been dismissed by the learned Additional District Judge vide order dated 28-3-1985. Hence, this Constitutional petition. 2. Learned counsel for the petitioners has vehemently contended that the two courts below were in error in interpreting the order of the High Court in the afore-mentioned writ petition because that had only set aside the order closing the oral evidence of the respondent for non-submission of the list of witnesses and the High Court had not set aside the order dated 17-5-1979 by which the respondent's right to produce documentary evidence was also closed and that this order was rig! tly passed which was not challenged by the respondent either. 3. When the respondent was debarred to produce evidence because of non-submission of list of witnesses and that order had been set aside, the effect hereof would be that the respondent would be entitled to produce his evidence and he could produce oral as well as documentary evidence. He could roduce the witnesses who may give oral testimony or may produce the documents. In view of the earlier decision of the D.B. of this Court, he could not be efused to produce a witness who may produce a document in turn. Therefore, if the two Courts below have come to the conclusion that the respondent was ntitled to produce both oral as well as documentary evidence, their decisions cannot be said to be without lawful authority and of no legal effect. 4. In view of what has been stated above, there is no force or merit in this petition and the same is, accordingly, dismissed in limine. Petition dismissed.
PLJ 1985 Lahore 240 PLJ 1985 Lahore 240 Present: lehrasap khan, J NASAR AHMADPetitioner versus PUNJAB PUBLIC SERVICE COMMISSION, Lahore through its Chairman and AnotherRespondents Writ Petition No. 2871/1984, heard on 2-3-1985. Punjab Civil Service (Judicial Branch) Rules, 1962 Appendix, Note under compulsory subjects read with Provisional Constitution Order J981 (CMLA's I of 1981)Art. 9 Grace marks - Award of Amended note under compulsory subjects in appendix to Judicial Branch Rules authorising Commission to award five grace marks to really deserving candidates in one or two papers Rules, however not allowing grant of grace marks to candidate failing to obtains 50% marks in aggregatePetitioner in case failing to obtain 50% in aggregate by falling short by three marks Held : Short fall by three marks being in aggregate and not in individual written paper, petitioner's case not to be covered by amended note [in Appendix to Civil Service (Judicial Branch) Rules]. [P. 24l]A Rana Ijaz Ahmed Khan, Advocate for Petitioner. Mr. Khalil Ramday, Add. A, G. for Respondent. Pate of hearing : 2-3-1985. judgment The petitioner Nasar Ahmad appeared in the Competitive Examina tion of the Civil Judges held by the Punjab Public Service Commission, in the months of February/March 1984, under roll No. 358. The result of the written examination was announced on 19-5-1984 and was published in the Provincial daily newspapers on 10th May 1984. The petitioner's name did not appear in the list of qualified candidates. Subsequently, the Secretary, Punjab Public Service Commission communicated his detailed marks to the petitioner a'cd it transpired from the contents of the communication that although the petitioner has obtained qualifying marks viz. 33% in each individual compulsory subject but he failed to obtain 50% marks in aggregate which fell short by three marks. 2. The petitioner approached the Commission through a represen tation for being allowed grace marks, but without any success. 3. Through the presen't constitutional petition the petitioner has assailed the decision of the Punjab Public Service Commission, whereby his request for llowing him grace marks has been turned down: 4. The West Pakistan Civil Service (Judicial Branch) Rules, 1962, in their application to the Province of Punjab were amended on 19 th October 1972, ide notification No. SOR-III-M2//0, dated 19th October 1972, and through the amendment thus made in the appendix to the Rules, the following note was ubstituted for the note under compulsory subjects ; "No candidate shall be summoned for viva voce test unless he has obtained at least 33 per cent marks in each individual written paper and 50 per cent marks in the aggregate of the written portion of the examination. Five grace marks however be given to really deserving candidates in one or two papers ; provided that such grant of grace marks shall not entitle the grantee to have a better position in the merit list than those successful candidates who have not been granted any grace marks. No candidate shall be considered to have qualified in the examination unless he also obtains at least 30 per cent marks in viva voce. Failure in or absence from viva voce shall mean that the candidate has failed to qualify for appointment and his name will not be included in the merit list." It is evident from the plain reading of the amended note that grace marks up to 5 can be given by the Commission to really deserving candi dates in one or two papers i.e. written papers. It has also been provided in the amended note that no candidate shall be summoned for viva voce test unless he has obtained at least 33% marks in each individual written paper and 50% marks in the aggregate of the written portion of the examination. 5. In the under consideration case, the short fall by three marks is in the aggregate and not in an individual written paper. The petitioner's case is, therefore, not overed by the aforesaid amended note, inasmuch as under the said note, the grace marks can be given to really deserving candidates in one or two papers. .The ules do not allow-grant of grace marks if a candidate fails to obtain 50% marks in aggregate. In this view of the matter, there is.no substance in the instant onstitutional petition, wbjch is, therefore, dismissed with no order as to costs. Petition dismissed.
PLJ 1985 Lahore 255 [DB] PLJ 1985 Lahore 255 [DB] Present : abdul shakurul salam & abaidullah khan, JJ ALLAH DITTAPetitioner versus PUNJAB LABOUR APPELLATE TRIBUNAL, Lahore and AnotherRespondents Writ Petition No. 5225 of 1984, decided on 21-5-1985. (!) Industrial & Commercial Employment (Standiug Orders) Ordinance, 1968 (W. P. Ord. VI of 1968)-
-S. O. 12 (3)WorkmanTermination of services ofOrder of Communication ofHeld : Order of termination to explicitly state reasons for action taken against workmanHeld fiiither : Aggrieved pers6n being not competent to have recourse to provisions of S. 25-A of Industrial Relations Ordinance, 1969 (XXlll of 1969) against order not communicated to turn, contention tnat termination order to require no communication to have no force at ail. [P. 2tf]A (ii) Provisional Constitution Order, 1981 (CMLA's 1 of 1981)-
Art. 9 read with Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (W. P. Ord. VI of i968)S. O. 12 (3) & Industrial Relations Ordinance, 1969 (XXlll of 19o9jS. 25-A WorkmanTermination of services ofOrder ofChallenge to Labour Court on finding termination order and post receipt having been fabricated by employer to defeat case of petitioner accepting, grievance petition and ordering reinstatementLabour Appellate Tribunal, however, reversing such order without examining or setting aside finding of lower courttermination order found to be not served even by such Appellate TribunalHeld : Order reversing decision of labour court to be clearly without lawful authority. [Pp. 257 & 258JC (iii) Interpretation of Statutes Legal provisionsPurpose ofHeld : Legal provisions to be inter preted in reasonable manner to give effect to their purposeHeld : farther : Letter of law. not to be interpreted in isolation divorced from its spirit. [P. 257]fl (ir) Industrial & Commercial Employment (Standing Orders) Ordinance. 1968 (W. P. Ord VI of 1968)
S. O. 12 (3) See : Provisional Constitution Order, 1981 (CMLA's 1 of 1981)-Art. 9. [pp. 257 & 258]C Mr. M. A. Hamid Awan, Advocate for Petitioner. Malik Bashir Ahmed, Advocate for Respondent No, 2. Nemo, for Respondent No. 1. Dateof hearing : 21-5-1985. judgment Abdul Shakorul Salam, J.This order will dispose of Writ Petition No. 5225 of 1984 and Writ Petition No. 5256 of 1984 as these arise jn similar circumstances. The petitioners were the employee for loading and unloading of Fertilizer Products by M/s Ayub and Company, contractors of the Da wood Hercules imited. They worked for 8/9 years. The contractors were replaced by the respondent No, 2. It appears that there arose differences between the employees and he respondent No, 1. The Assistant Director Labour Welfare, Sheikhupura. intervened and the respondent agreed to keep the permanent orkers of Ayub and Company as well as workers on piece rate basis, on their usual terms. This is dated 3-6-1980. Sometime later, according to the petitioners, they were stopped from entering the factory and per forming their duties. They filed applications under section 25-A of the Industrial Relations rdinance, 19o9, seeking direction to the respondent for allowing them to perform their duties, inter alia, on the ground that ei ther any inquiry was held nor any order erminating their services was passed but orally the petitioners had been stopped from entering the remises and to perform their duties. The case of the espondent was that termination orders were passed and also communicated to the petitioners. After recording the evidence of the parties, the learned Presiding Officer, Punjab Labour Court held that "the termination order and the postal receipt are, therefore, of no help to the respondent to show that petition is time- arred or that services of the petitioner were in fact terminated, The termination order and the postal receipts both appear to have been fabricated to defeat the ase f the petitioners. The man who passed that order did not appear in the witness box nor any postal clerk was produced to satifactorily establish the genuineness of the ermination order/postal receipt." Finally, the learned Labour Court accepted the grievance petitions and directed reinstatement of the petition ers but without back enefits. This is vide order dated 29-9-Iv83. The petitioners appealed for back benefits and the respondent against the order of reinstatement of the petitioners. he arned Punjab Appellate Tribunal dismissed the appeals of the petitioners and accepted those of the respondents vide order dated 28-1-1984. Hence, these onstitutional petitions. 2. Learned counsel for the petitioners has vehemently contended that the learaed Labour Court had found that the termination orders as well as postal receipts were fabricated to defeat the case of the petitioners. With out examination of the finding as to whether the termination orders were fabricated or not, the learned Appellate Tribunal fell into error in taking it for granted and proceeding on the basis that termination orders were passed n time. It was, secondly, contended that the learned Labour Court had held that postal receipts for dispatch of the termination orders to the etitioners were fabricated. The finding was not reversed by the learned Appellate Tribunal. Rather, its consequence was accepted when it was held y the learned Appellate Tribunal that "So the finding of the learned Lower Court is correct that the termination order was not served." otwithstanding that, petitioners' grievance petitions weredismissed. It is submitted it was illegal, (defeat the case of the petitioners without examination of the first finding land inspite upholding that the termination order was not served, is clearly without lawful authority and of no legal effect. It is so declared. The petitions are allowed but in the circumstances the parties are left to bear their own corts. (TQM) Petitions allowed,
PLJ 1985 Lahore 258 PLJ 1985 Lahore 258 Present: zia mahmood mirza, J ABDUL REHMANPetitioner versus Professor GHULAM RASOOL TANWIR and OthersRespondents Writ Petition No. 1030 4 of 1980, decided on 14-5-1985. (i) Urban Rent Restriction Ordinance, 1959 (W. P. Ord VI of .959) S. 13 (2) (i) read with Displaced Persons (Compensation & Rehabilitation) Act, 1958 iXXVill of 1958)-S. 30Statutory tenant-Ejectment of - DefaultGround ofLatest assessment Demand of rent on basis ofAssessment on basis of which landlord demandded rent allegedly not can led out in terms of proviso (a) to S. 3«J(i) Held : Rent Controller not to go behind such assessment to ques tion validity of demand notice based thereon-Held further : Latest assessment made by relevant authorities being not open to be questioned on any premises, notice demanding rent on basis of such assessment to be perfectly lawful. [Pp. 265 & 266]<4 & £ PLD 1965 Lah. 82 ; PLD 1967 Lah. 29 ; PLD 1968 Lah. 252 ; PLJ 1973 Lah. 556 ; 1978 SCMR J69 ; PLJ 1980 Kar. 116 ; PLD 1970 Lah, 923; PLJ 1975 Lab. 321 ; PLJ 1977 Lah 383 ; PLJ 1979 Lah. 511 ; 19/9 CLC 745 ; PLJ 1983 Lah. 25^; PLJ i9<6 Lah. 280 & PLJ 1980 Lah. 281 ref. (ii) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959) Ss. 13 (2)(i) read with Displaced Persons (Compensation & Reha bilitation) Act,i9jo tXXVlll of 1V38)-S. 30 (1) Proviso (a)- Statutory tenant- Ejectment of Default Ground olLatest assess mentDemand of rent oa basis ofHeld: Transferee of evacuee pro perty to be entitled to charge rent from us occupant on basis of latest assessment from date of transfer (subject to bar of limitation) Held further : Tenant not paying rent so demanded within period of three months from date of notice given to him in that behalf to render himself liable to be ejected. [P. 268]£ PLJ 1975 Lah. 321 ; PLJ 1977 Lah. 383 ; PLD 1970 Lah. 923 ; PLJ 1979 Lah. 511 ; 1979 CLC 745 & PLJ 1983 Lah. 259 distinguished. (iii) Urban Rent Restriction Ordinance, 19^9 (W. P. Ord. VI of 1959) Ss. 13 & 15 read with Displaced Persons (Compensation & Reha bilitation) Act, 1958 (XXV111 of 1958) - S . 30 (1) Proviso (a) Statutory tenantFailure to pay rentEffect ofTenant instead of complying with lawful demand made by landlord offering to pay him rent at lesser rate - Held : Tenant to be clearly in default. [P. 268JF (iv) Displaced Persons (Compensation & Rehabilitation) Act, 1958 (XXVIII of W58)- S. 30 (1) Proviso (a)Statutory tenant Protection of Latest assessmentDemand of rent on basis ofHeld: Tenant to be liable to pay arrears of rent for period after transfer at rate deter mined on baisis of latest assessment provided such rent demanded be not time-barred. IP. 261]D (t) Displaced Persons (Compensation & Rehabilitation) Act, 1958 (XXVIII of 1958)
S 30 (I) Proviso (a)See : Urban Rent Restriction Ordinance, 1959 (W P Ord. VI of I959)-S. 13 (2) (i) & Ss. 13 & 15, [Pp. 265, 266 & 268]^. B, E & F (vi) Interpretation of Statutes 'ProvisoContraction ofHeld : Proviso being exception to sub stantive provision, it must be construed with reference to and in light of substantive part of section. [P. 266JC PLD 1950 Lah. 12 & PLD 1967 Pesh. 99 re/.' Mr. Munir A. Sheikh, Advocate for Petitioner. Mr. Talib H. Rizvi, Advocate for Respondent No. 1. Dates of hearing : 2, 6 & 13-3-1985. judgment This constitutional petition has been filed by the tenant to call in question the order of the District Judge, Faisalabad , dated 25-2-80 directing his ejectment from the shop in dispute. 2. Facts necessary for the disposal of this petition, briefly stated, are that an evacuee property bearing No. P. 34, Ward No. 3, Katchery Bazar, Faisalabad, which comprised a shop on the ground floor and residential portion above was transferred to Professor Ghulam Rasul Tanwir respon dent No. 1 by the Settlement Department in November, 1959 but PTO was issued to him on 20-11 68 as the matter of transfer of the said property remained pending in the higher Courts. Abdur Rahman petitioner was in occupation of the said shop transferred to respondent No 1. Respondent sent a registered notice (Ex. AW. 4/1) on the lower Court's record) to the petitioner on 15-5-72 intimating about the factum of transfer of the pro perty to him and also demanding payment of rent for three years preceding the date of the notice at the rate of Rs. 350/- per month which was based on the "House Tax" assessed for the property. Copy of this notice it available on the present record at page 143-145 and also at page 205207. Petitioner sent a reply (Exh P 7 at page 147-149 wherein he.did not accept the transfer of the property in dispute in favour of respondent No. 1 stating that he was agitating against it. Petitioner also challenged in his reply the assessment made in the year 1967-68 at Rs. 4165/- as illegal and stated that correct annual assessment of the whole of the property was Rt. 2700/- according to which its monthly rental was Rs. 225/- and the proportionate monthly rent of the shop in dispute, at the most, was Rs. 111/-. He, therefore, sent, under protest, a cheque for Rs. 7080/- towards the arrears of rent from 1-5 69 to 31-8-72 at the rate of Rs 177/- per month. On the receipt of this reply from the petitioner, respondent No. 1 have another notice to him on 7-10-72 (R. 8 available at page 211- 213 on the present record) whereby he informed the petitioner that as per the latest assessment made effective from 1-7-72 in pursuance of the order of the Director, Excise and Taxation Department dated 18-9-72, monthly rent of the shop was fixed at Rs. 900/- which rent he claimed to be paid with effect from 1-7-72. In this notice, respondent No. 1 pointed out that to start with, monthly rental of the shop in dispute, was assessed by the Municipality at Rs. 520/- but later on, Excise and Taxation Department in collusion with the petitioner fixed its rental value at Rs. 350/- per month. This notice was also replied by the petitioner on 11-11-72 v/rf«Exh. P. 8/R. 14 (available at page 235-237) contesting the rate of rent demanded by the respondent No. i. Respondent, therefore, feeling that the petitioner by not paying the rent demanded by him had committed default in the payment of rent, instituted ejectment polition against him on 23-12-72. This petition was vehmently contested by the petitioner by raising a number of objections. He, inter-alia, questioned the validity of the notice u/'s 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and also denied the relationship of landlord and tenant. Issues based on some of the objections were decided earlier. However, following issues which are relevant for the purpose of the present petition were framed by the learned Rent Controller on 14-12-77. (1) Whether the petitioner has demanded legal rent u/s 30 of Act XXVIII of 1958 ? OPA. (2) If issue No. 1 is not proved what is the rate of rent ? OPP. t,3) Whether the respondent has committed default in the payment of rent? OPA. 4. Relief. 3. Both the parties led evidence, oral as also documentary, in support of their respective contentions. Learned Rent Controller proceeded on the premises that he respondent No. 1 could demand the rent on the basis of the assessment made by the Municipality or the local authority whereas demand made by him as based on the assessment of the Excise and Taxation Authority. It was, therefore, held on issus No. 1 that the demand of rent made by the respondent-landlord as illegal. As regards issue No. 2, learned Controller relied upon Ex P. 13 which was a copy of the assessment made by the Municipality for the year 1960 61 and eld that "the rent of the shop in dispute within the scope of assessment carried out by the Municipality is Rs. 450/- per month". On the question of default, earned Rent Controller held that in view of his finding on issue No. 1, no legal notice of demand was sent by the landlord and consequ ently the pe.itioner could ot be held defaulter. With these findings, viction petition was dismissed by the learned Rent Controller by order dated 14-7-79. 4. Respondent-landlord preferred an appeal which was accepted by the learned District Judge, Faisalabad by his order dated 25-2-80 holding that the demand of s, 350/- per month at rent wtt not illegal in view of Qazi Ghnlam Kibrya 8 others v. Afzal Ahmad Khan" (P.L J 1973 Lahore 556), "Ghulain Hussain alias Zair v. Cb Muhammad Afzal etc. (1978 S.C M R. 269), (6) " Tahir Ali v. Mst. Masoodi Btgnm and 4 others" (P.L J 1980 Karachi 116), (7) "Abdul Jabbar v. Mst. Nafeesa Khatoon" (P L.J, 1982 Karachi 160), (8) "Nizam Din (Represented by 14 others) v Mst. Nawab Bibi" (P L.D. 1970 Lahore 923), (9) 'Muhammad Ismail v. Muhammad Sharif" (P.L.J. 1975 Lahore 321), (10)'-Gbulam Mobyuddin v Suba Khan (P L.J. 1977 Lahore 383), (11) "Khuda Bakfash v. Mian Faial Din (P L.J. 1979 Lahore Sll), Amir Hussain v. Syed Manmood Ali" (1979 C.L.C. 7<-5 (Lahore) and P.L.J. 1983 Lahore 259. 8. Learned counsel appearing for the respondent landlord, on the other hand, contended that in pursuance of the proviso (a) to sec tion 30(1) of the Displaced Persons (Compensation and Rehabilitation) Act. 1958, respondent landlord was entitled to claim the rent on the basis of the latest assessment carried out by the Municipality or the local Authority and he could charge such a rent with effect from the date of transfer subject, of course, to the condition that the rent claimed/demand ed was not time barred. Learned counsel cited "Mohammad Sharif v. Fazal Hussain" (P.L J. 1976 Lahore 280) to controvert the proposition that the tenant was not obliged to pay the arrears of rent for the period precedent to receipt of the notice on the basis of the latest assessment. He submitted that the tenant was liable to pay the rent from the date of transfer on the basis of the latest as assessment except the rent which had become time-barred. Learned counsel for the respondent also heavily relied upon "Sh. Fazal Eltbi v Mohammad Siddiq and 7 others" (P.L J. 1980 Lahore 291) to canvass the proposition that his client was entitled to charge the rent as determined according to the latest assessment as made by the relevant authorities and it is not open to the Rent Controller to go behind such an assessment. 9. Before dealing with the contentions raised by the learned counsel would like to mention that a Division Bench of this Court on a reference made in this case has held by order dated 24-9 84 that the assessment carried out by the Excise and Taxation Department under the West Pakistan mmovable Property Taxt Act, 1958, could be treated as assessment made by the Municipal Committee and the same could turnish a valid basis for ssessment of rent for the purpose of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. 10. As the contentions raised by the learned counsel mainly involve the interpretation of section 30 of the Displaced Persons (Compensation and Rehabilitation) ct, 1958, it will be appropriate to reproduce the ame which reads as follows : "30. Protection of certain occupants.(1) Where any person is in possession of any evacuee bouse, or shop, or has been declared, on or before the twentieth day of December, 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August, 1947 in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained-in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be within one month of such transfer and where such notice is not given within one month from the date of receipt of such a notice. Tenant, however, forfeits his right to continue in possession for statutory period if he does not pay or tender the amount of rent or arrears of rent for any period after the transfer within three months from the date the of receipt of notice of demand sent to him by the transferee by registered post (acknow ledgment due) or commits any other default specified in clause (//) of subsection (3) of section 30. 11. Now in the present case, facts which are not in dispute are that the petitioner was paying Rs. 48 per month as rent of the shop in dispute to the Rehabilitation Department. After the issuance of PTO on 20-11-68. respon dent-landlord gave statutory notice to the petitioner on 15-5-72 demanding from him rent for three years preceding the date of notice at the rate of Rs. 350 per month. It was made clear in the notice that rate of rent deman ded was based on the "house tax" assessed for the property in dispute. Petitioner did not pay the rent as demanded from him and instead offered to pay the rent at the rate of Rs. 177 per month which according to him was the proper rent. Respondent sent another notice to the petitioner on 7-10 72 demanding rent at the rate of Rs. 900 per month with effect from 1-7-72 and this enhanced rent he claimed on the basis of the order dated 18-9-72 (Exh. P. 9/Annex. R. II) passed by the Director, Excise and Taxation where by monthly rental value of the shop in dispute was fixed at Rs. 900; Petitioner also disputed this enhanced rent as illegal It is however, no more necessary to pronounce upon the validity of this second notice and its effect in view of the fact that the res pondent landlord has withdrawn the writ petition filed by him. Thus the questions which arise for consideration are (i) Whether notice dated 15-5-72 (Exh. A. W. 4/1) suffered from any illegality ; and (ii) If the said notice was legal, whether the respondent landlord was entitled to receive the rent which he demanded at the rate of Rs. 350 p. m. for three years proceeding the date of notice. 12. As regards the first question regarding the legality of the demand notice, learned counsel, presumably on account of the view expressed b> the learned Division Bench in the reference made in this case, did not press the ground raised before the Tribunals below viz the respondent could lawfully demand the enhanced rent on the basis of the assessment carried out by Municipal Committee or Local Authority and not on the basis of the assess ment made by the Excise and Taxation Department. Before me. Learned counsel assailed the validity of the notice on the ground that the rent de manded therein was fixed on the basis of the assessment made in respect of the shop in dispute alone whereas according to proviso (a) to section 30 I) as amended, rent should have been determined on the basis of the latest amendment, carried out for other properties in the locality. For this pro position, learned counsel relied upon the words "for other properties in the locality generally" added in the proviso (a) by amendment introduced by Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Act (XIX) of 1963. He contended that before this amendment, there was tendency amongst the transferees of the evacuee properties to get their pro perties assessed at higher rates so as to charge excessive rent from the ccu pants/tenants. These words were added, according to the learned counsel, with a view to safeguard the interest of the tenant. Precise submission f the learned counsel was that the assessment which the respondent made the basis of his demand wai carried out by the relevant authorities without aking applicable to him before the transfer. This provision was, however, subjected to proviso (a) which created a right in the transferee to charge the ent based on the latest assessment. This proviso was considered in PLD 19fc8 Lahore 252 and it was held that it w&s intended to secure two objects "firstly, that the rental values of the properties transferred under the Act should be assessed afresh by the Municipalities or Local Authorities, and, secondly, that the benefit of fresh rental assessment should be given to the transferees. The expression <- latest assessment" tn the unamended proviso would, therefore; seem to refer to the rental assessment made by a Municipality or a Local Authority on transfer, or in anticipation of transfer of a property under the Displaced Persons (Compensation and Rehabi litation) Act, 1958." The effect of the proviso, in my view, was that the petitioner was liable to pay the arrears of rent for the period after the transfer at the rate determined on the basis of the latest assessment provided the tent demanded is not time-barred. This liability can be clearly spelt out Irom the ombined reading of proviso (a) to sub-section (1) of section 30 and the provisions of sub-section (3) (1) of that section. Support for this view~ may be ad from PLD 19-6 Lahore 1378 wh:rein, contention that the tenant was not obliged to pay arrears of rent for the period preceding the receipt of notice s repelled and it was held that the tenant was liable to pay the rent from the date of transfer except such rent which had become time-barred. ' 16. Brief reference may now be made to the cases cited by the learned counsel for the petitioner in support of his submission that liability of the tenant to pay the rent at the enhanced rate on the basis of the latest assessment does not extend to the period prior to the notice. PLD 1970 Lahore 923 was a case of second uotice under section 30 demanding enhanc ed rent Moreover, the matter came up in this Court in second appeal against an order u/s 13 (6) of the Rent Restriction Ordinance directing dep osit of tentative rent at the enhanced rate. plj 1975 Lahore 321, too, is a case of second notice demanding enhanced rent, tenant having started paying rent in compliance with the demand made in the first notice. On these facts, it was held that tenant was liable to pay rent at the enhanced rate "from the date of issue of notice and not prior to that." Similarly in PLJ 1977 Lahore 383, transferee gave a notice to the tenant demanding Rs. 60/- as monthly rent on the basis of the latest assessment. Tenant started making payment in compliance with the notice. Subsequently, rent was re-assessed at a higher rate and the transferee gave second notice which was not complied with by the tenant. Thus, this was also a case of second notice and it was, therefore, held that tenant was liable to pay the enhanced rent with effect from the date he received the notice. PLJ 1979 Lahore 511 was decided on the concession made by the learned counsel for the landlord that they could not demand rent at the enhanced rate. 1979 CLC 745 was also a case of second notice. In the last case relied upon by the learned counsel for the petitioner viz, PLJ 1983 Lahore 259, demand for payment of enhanced rent at the rate of Rs. 70/- per month was made after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act and it was held that the tenant was not liable to pay the rent demanded particularly when he has already been regul ry paying rent to the landlords at a par ticular rate. Thus the question mooted by the learned counsel for the petitioner in the present case was not under consideration as such in the precedent case. It may be pointed out that the learned counsel for the petitioner could not cite any case to show that where a transferee-landlord, in his notice under section 30 given for the first time, demanded rent on the basis of the latest assessment from the date of transfer or for any period preceding the date of notice, the tenant was held not liable to pay such rent for the period preceding the notice. 17. Correct legal position, in my view, as noted above, which clearly emerges from the reading of section 30 particularly proviso (a) and sub section 0)(1) is that a transferee of an evacuee property is entitled to charge the rent trom its occupant on the basis of the latest assessment from the date of transfer except such rent which has become time-barred and in case. tenant does not pay the rent so demanded, within a period of three month from the date of notice given to him in that behalf, he renders himself, liable to be ejected. In the present case, admitted position is that the respon dent gave notice, (Ex. AW. 4/1) to the petitioner on 15-5-72 demanding rent for three years preceding the notice at the rate of Rs. 350/- pjm. which rent was determined on the basis of the latest assessment made by the relevant authorities Petitioner instead of complying with the lawful demand made b the respondent-landlord offered to pay the rent at a lesser rate of Rs 1 p.m. Petitioner was, clearly in default and it has been rightly so held the learned District Judge. Upshot of the above discussion is that the impugned judgment of the learned District Judge proceeds on correct premises, legal as also factual. It does not suffer from any illegality much less any jurisdictional defect. This petition, therefore, fails and the same is dismissed with costs. (TQM) Petition dismissed.
PLJ 1985 Lahore 268 PLJ 1985 Lahore 268 Present: mahboob ahmad, J UMAR DINAppellant versus GHAZANPAR ALI and AnotherRespondents Regular Second Appeal No. 577 of 1979, heard on 6-5-1985. (i) Civil Procedure Code, 1908 (V of 1908)
O. XLI, R. 31 & S. 100 Appellate court Judgment ofPoints for determination clearly spelt out in judgment of first appellate courtFindings on all such points recotded after due appreciation ot evidence on record and by drawng reasonably acceprable inferences Held : Requirements of O. XLI, R: 31 sttanding squarely complied with, judgment of lower appellate court in no manner to suffer from any infirmity. [P. 272]^ & G (ii) CiTil Procedure Code, 1908 (V of 1908)
O. XLI, R. 31 & S. 100First appellate court Judgment of Challenge toFirst appellate court while giving its own findings on evidence on record, omitting to refer to each witness and descrip tion of rach documentHeld : Judgment of such court not to become bad in law so as to call for interference in second appeal. [P. 272]£ (ill) CiTil Procedure Code, 1908 (V of 1908)- O. XLI, R. 31 -Appellate CourtJudgmsnt of Issuewise dis cussion Failure to make Effect of Issuewise discussion not made by lower appellate courtHeld : Such requirement being not deducible on plain reading of R. 31 of O. XLI of CPC, grievance of appellant not to be well founded. [P. 272 & 273]# (i?) CiTil Procedure Code, 1908 (V of 1908)-
O. XLI, R. 31Appellate court - Judgment ofContents" of Held : Every non-compliance of strict provisions of rule not neces sarily to vitiate judgment and make it wholly void Substantial compliance of provisions of rule 31 madeSecond appellate court also in position to ascertain findings of lower appellate court Held : Irregularity, if any committed, to be ignored. [P. i!2]B (v) CiTil Procedure Code, 1908 (V of 1908) O. XLI, R. 31Appellate courtJudgment byContents ofHeld : Judgment of appellate court to deal with all material points involved in case and (also) be show that Judge applied (his) independent mind to material on record. [P. 272[C (t!) CiTil Procedure Code, 1908 (V of 1908)
O. XLI, R. 31 Appellate court Judgment byAll relevant points required to be determined in suit or appeal substantially con sidered by first appellate courtHeld : Compliance of R. 31 of O. XLI of Code having been adequately made, appellate court need not refer to every item of evidence or document taken into consi deration by trial court. [P. 272]0 (vii) CiTil Procedure Code, 1908 (V of 1908) .
O. XLI, R. 31Appellate CourtJudgment byJudgment deliver ed after hearing appeal by court subordinate to High CourtHeld : Compliance of provisions of R. 31 of O. XLI to be absolutely neces sary. [P. 272]^ ' Mr. Hakam Qureshi, Advocate for Appellant. Mr. Wai ay at Htusain Haidri, Advocate for Respondent. Dates of hearing : 29-4 & 6-5-1985. judgment This Regular Second Appeal is directed against judgment and decree dated 24-4-1979 passed by the learned District Judge, Sargodha. 2. The brief facts of the case are that (Jour Din appellant instituted a suit against the respondents jin the Court of Civil Judge First Class, Sargodha, for possession of a part of Ah at a No. 146, situate in Chak No. 120-SB, Tehsil and District Sargodha. It was asserted by the plaintiff that the Ahata aforesaid was allotted to him on 20-11-1947 on his migration to Pakistan from Gurdaspur, India for which he was paying rent to Government and applied for transfer of the same to him. According to the plaint, respondent-defendant No. 1 wanted to have 5 Marias of land out of the said Ahata from the appellant and on his refusal took forcible possession thereof on lft-3-1977 and started construction thereon. The plaintiff's complaint to the Police was not registered with the result that the plaintiff had to institute the suit for possession with consequential relief of an in junction restraining respondents from raising any construction on the portion ^jry 1 on the plan annexed with the plaint. The suit was resisted by the respondents-defendants who Inter alia pleaded that the plot in dispute had been formally allotted to them underScheme VII by the Settlement and Rehabilitation Department and as such the Civil Court had no jurisdiction to entertain the present suit and that the appellant-plaintiff had no lotus standi to claim the parcel of land in their possession. The divergent pleadings of the parties gave rise to the following issues : (/) Whether this court lacks jurisdiction to try the suit ? (/O Whether this suit has been improperly valued for the purposes of court fee and jurisdiction ? (I//) Whether the plaintiff is estopped from bringing the suit ? (/v) Whether site plan attached to the plaint is incorrect, if so its effect ? (v) Whether the suit property is owned by Provincial Government and whether it has been allotted to the plaintiff so when and with what 'effect? (vi) Whether the defendants have become its owners under Settlement ' Secheme No. 7 ? (v;7) Whether the defendants have raised constructions over the disputed property, if so when and with what effect ? (v//i) Whether the defendants are entitled to recover special costs from the plaintiff, if so to what extent ? (ix) Whether the plaintiffs are entitled to the possession of the disputed property ? (x) Whether the defendants had forcibly taken possession of the dispu ted property if so when and with what effect ? (/) Whether the plaintiff is entitled to the injunction prayed for by them (xii) Relief. The learned Civil Judge Sargodha, by his judgment and decree dated 21-1-1979, decided all the issues, except issues Nos. 10 and 11, in favour of the appellant and on the basis of his findings on issue No. 5 decreed the suit with costs to the extent of the prayer for possession of the plot in dispute. (a) the points for determination ; (b) the decision thereon ; (c) the reasons for the decision ; and (</) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. I may observe that in a judgment delivered after hearing an appeal under Order XLI, Rule 31 C.P.C. by a Court subordinate to the High Court compliance of the provisions of Order XL}, Rule 31 C P.C. is absolutely necessary, The question however whether in a particular case- there has been a substantial compliance of the provisions of Rule 31 of Order XLI of the Code of Civil Procedure is a different one and dependent on the nature of the judgment delivered in each case It cannot be held as a rule that every non compliance of the strict provisions of this/ rule would vitiate the judgment and make it wholly void. Irregularity if any committed may be B ignored, if it is found that a substantial compliance of the provisions of the rule has been made and the Second Appellate Court is in a position to ascertain the findings of the lower Appellate Court The legitimate construc tion of this rule would therefore be that the judgment should deal wjth all the material points involved in the case and it should show that the Judge has applied independent mind to the material on record. There is no dearth of authority on the principle that compliance of Rule 31 of Order XLI of the Code of Civil Procedure would be adequately made if there has been substantial consideration of all the relevant points required to be determined in the suit or appeal and that the First Appellate Court need not refer to every item of evidence or document taken into consideration by the trial Court, It is also a settled principle that if the First Appellate Court omits to refer to each witness and description of each document the judgment would not become bad in law so as to call for interference in a second appeal if the lower Appellate Court has given its own findings on the evidence on record. 7. Applying the above principles there appears no non-compliance of the provisions of Order XLI, Rule 31 C.P.C. in the instant case. In tht. impugned judgment the points for determination have been clearly spelt out, decision on these pom's is manifest, and the reasons therefor are also not lacking. The lower Appellate Court in the context of the controversy arisen before it appears to have come to the conclusion that the points requiring determination were whether the Civil Court had jurisdiction to try the suit, whether the suit property-, was owned by the Provincial Government, whether the respondents-defendants had become its owners under Settlement Seheme VII, and whether the claim of the plaintiff in the suit about taking of forcible possession of a portion of the Ahata in dispute by thel respondents-defendants was established. The findings on all the above points have been clearly given in paras. 8 to 11 of the judgment which have been recorded after due appreciation of the evidence on record and by drawing G reasonably acceptable inferences. I have, therefore, no hesitation in holding that the requirements of Order XLI, Rule 31 C.P.C. stand squarely complied with by the lower Appellate Court and that the impugned judgment in no manner suffers from any infirmity. Before parting with this aspect of the matter I may also observe that thefa grievance made on behalf of the appellant that issuewise discussion had,' not been made by the lower Appellate Court is also not well founded. Neither on a plain reading of Rule 31 of Order XLI of the Code of Civil Procedure such a requirement is deducible nor any authority has been cited in support of this proposition. 8. As regards the second submission of the learned counsel for the appellants that the documents Ex. P. 1, Ex. D. 1 and Ex. D 6 ave een misread or for that matter there has been omission to consider the testimony of P. W. 1 and that of the appellant-plaintiff himself, I suffice by observing that it also has no force. These documents have been properly read and the inferences drawn therefrom are not only based on a proper reading of the record but also by keeping in view the relevant law on the subject viz. the Rehabilitation and Settlement Laws. Now, Ex. P. 1 is admittedly an Allotment Order made at the time of the establishment of Pakistan when there was mass immigration taking place. The issuance of that order as held in the impugned judgment was obviously on an ad hoc basis and it ceased to be effectively in field when relevant legislation viz. the Rehabilitation Law were enforced and allotments were made to all concerned thereunder. The evacuee nature of the property in dispute also stands established by the statements of D.W. 3 and D.W. 4 who have categorically stated that the property was evacuee and no suggestion even was made to them by the appellant-plaintiff that it was not so. On this point the testimony of P. W. 1 Addul Hakim is also very important- wherein he has admitted that in the , report of the Tehsildar which is available on record brought by him, the AHata in dispute is an evacuee property owned by an evacuee named Sant Ram son of Karam Singh. There would thus be no justification to criticise the judgment of the lower Appellate Court whereby it has been held that the property in dispute was an evacuee property which had been lawfully dealt with and allotted to the respondents-defendants by the Rehabilitation and Settlement Department and that such orders of the said authorities were not open to question ina civil suit. 9. In view of the foregoing discussion I find no merit in this appeal which is accordingly dismissed. There will, however, be no order as to costs. (TQM) Appeal dismissed.
PL J 1985 Lahore 273 (DB] PL J 1985 Lahore 273 (DB] Present : abdul shakurul salam & ch. amiad khan, JJ Mst. HAJRAN-Appeilant versus GHULAM SARWAR KHAN and 2 OthersRespondents Intra Court Appeal No. 64 of 1982, heard on 19-1-1985. (1) Law Reforms Ordinance, 1972 (XII of 1972) S. 3 (2) ProvisoIntra court appealCompetency ofAppeal or revision against original order competent in matter brought before High Court nder Art. 199 of ConstitutionHeld : Decision arrived at by Single Judge not to be further appealable before Division feqch of High Court. [P. f (ii) Ltw Reforms Ordinance, 1972 (XII of 1972)- S. 3 (2) ProvisoIntra court appeal Competency of"Proceed ings"Meaning ofHeld : "Proceedings" to mean judicial or quasijudicial proceedings in which rights of parties be adjudged and not executive order passed in office ignoring or annulling judicial order- Matter brought before High' Court not arising out of any such proceedings Held : Matter brought before High Court being executive order (not even challcngeable by way of appeal etc.), appeal against order of Single Judge to be quite competent io circumstances. [P. 275JB Mr. Shamim Abbas Bokhari. Advocate for Appellant. Mr. Irshad Ahmad Qureshi, Advocate for Respondent. Date of hearing : 19-1-1985. judgment Abdul Shikurul SaUm, J.This order will dispose of I. C. A. No- 64 of 1982 and Crl. Original No. 147/W-82 as these are connected matters. 2. The appellant (Mst. Hajran; claimed to be in possession of some land. It was allotted to the respondent No. 1 (Ghulam Sarwar han) as an evictee from Chasma Barrage vide order dated 2-7-1973. The appellant made applications to the administrative authorities at the ighest level too that she and her relatives being -in possession were wrongly deprived of the land. The Member, Board of Revenue passed an order n 18-10-1975 to the effect that "the land previously earmarked for Messrs Ghulam Sarwar Khan and Alam Sher Khan, has been finally leased out to st. ajran. Member (Colonies), Board of Revenue, has desired that the two petitioners should be made available 15 acres each within one month, preferably according to the choice of the petitioners." This was challenged by the respondent No. 1 by means of a Constitutional Petition No. 851 of 1975 which has been accepted by the learned Single Judge vide order dated 3-31982. Hence this appeal. 3. Le rned counsel for the parties point out that the aforesid writ petition was heard alongwith another Writ Petition No 2852 of 1975 and a consolidated order was passed. The appellant challenged the order in the second petition by means of I. C. A. No. 125 of 1982 which was dismissed on the ground of being barred by time and also on the ground that no I. C. A, against the revisional order of the Member Board of Revenue was competent, vide order dated 27-9 1982. Against this order, the appellant filed C. P. S L. A No. 582 of 1982 in which a letter from the Board of Revenue was produced before the learned Supreme Court to the effect that the order of Member Board of Revenue dated 18-10-1975 impugned in the writ petition was passed on the executive side ; and, therefore, that was original and against that on the dismissal of the rit petition, the writ petitioner was entitled to file an I. C. A. The petitioner, in that case has been granted stay order and the matter is still pending. On merits, the learned counsel for the appellant submitted that the appellant has been in possession of the land in dispute for a number of years and was rightly allotted the land by the Member, Board of Revenue. 4. Learned counsel for the contesting respondent No. 1 has submitted that this I, C, A. is not competent for the reason that toe appellant, appellant has taken the matter before the learned Supreme Court of Pakistan and it is pending there. A request was made that this case may be kept pending until the decision of the learned Supereme Court of Pakistan. However, on the application of the appellant a direction has been issued by the learrned Chief Justice that this case should be disposed of by hearing day-to-day. The matter has not been dealt with on merits in the presence of the parties at any stage. Therefore, it appears to be just and In the interest of the parties that the matter is finalized on merits as soon as possible. 6. In view of what has been stated above, the order of the learned Member, Board of Revenue dated 18-10-1975 declared to be without lawful authority and of no legal effect by the learned Single Judge is quite right. But, in the circumstances of the case, it appears to us that the appropriate order should have been that after the order of the learned Member, Board of Revenue which had been passed in favour of the appellant at the back of the respondent No. 1, was declared to be without lawful authority, the matter was referred to the learned Member, Board of Revenue for re-hear ing in the presence of both the parties or after due notice to them. It is so directed. All the pleas as to whether the appellant was entitled to the lease of the land, or, that the resepondent No. 1 was rightly allotted the land at the time when that was done, or, what is the effect of the events which have subsequently occurred as would appear from the original file which we have perused, are matters which the parties can raise before the learned Member, Board of Revenue who shall decide the case in accordance with law. For expeditious disposal of the matter, the parties are Jirected to appear before the learned Member, Board of Revenue on 2-2-1985. The appeal is thus disposed of leaving the parties to bear their own costs. 8. In view of the decision in the appeal, the Crl. Original No. 147/W of 1982 is not pressed by the learned counsel for the applicant. It is, accordingly, dismissed. (TQM) Order accordingly.
PLJ 1985 Lahore 276 PLJ 1985 Lahore 276 Prtttnt : gul zarin kiani, J Mst. HAFIZAN-Petitioner versus MUHAMMAD YASIN and 2 OthersRespondent Writ Petition No. 637 of 1984, heard on 6-2-1985. (I) Family Courts Act, 1964 (W. P. Act XXXV of 1964) - S. 5 read with Provisional Constitution Order (CMLA's 1 of 1981) Art. 9MarriageDissolution ofOption of pubertyExercise ofNo foundation necessary to attract principle of exercise of right of option of puberty laid down in plaintHeld : Mere fact of wife being below 15 years of age at time of marriage to be top slender basis to hold in constitutional jurisdiction that she (had) validity exercised such right and terminated marriage contract. [P. 280]^ (ii) Family Courts Aet, 1964 (W. P. Act XXXV of 1964)- -- S 5 Family suits Consolidation of Court Powers of Two suits raising identical questions of fact and law consolidated by Family CourtHeld : Court being competent to order consolidation in exercise of its inherent powers, no illegality committed in case by ordering consolidation of suits raising identical questions. [P. 280]fl (Hi) Family Conrto Act, 1964 (W. P. Act XXXV of 1964)- S. 5 Family suits Consolidation of Effect of All issues re-settl ed as result ot consolidation order Held : Issues having been recast, court to ask parties to lead evidence afresh in support issues recast. [P. 280JC Family Courts Act, 1964 (W. P. Act XXXV of 1964) - -- Ss. 5 & 10 (4) Family suit Issues Settlement of Plea in support of Khula divorce evidently raised in plaint Held : Family court to be bound to frame separate issue on question of Khula Held farther: Failure to frame seperate issue to prejudice real trial of controversy. [P. 280 & 28l]D & E (?) Family Courts Act, 1964 (W. P. Act XXXV of 1964)- -- S. 10 (4) Family CourtDuty to frame issues Held ; Duty to frame proper issues arising out of pleadings of parties to vest in court Held further : Absence of proper assistance (from lawyer representing parties) not to absolve court of its primary duty to have look on pleadings of parties and then frame correct and proper issues arising therefrom. [P. 281]£ (vi) Jurisdiction- -- Exercise of Held : Court or tribunal vested' with jurisdiction to exercise its jurisdiction firstExercise of that jurisdiction by higher court/tribunal without allowing former to exercise, held further, not to be permissible in law. [P. 282]G Mr. A. K. Dogar, Advocate for Appellant. Ch. Irshad Mahmood, Advocate for Respondent No. 1. Date of hearing : 6-2-1985. judgment I propose to dispose of Writ Petition Nos. 637 and 638 of 1984 which raise identical questions of fact and law and arise out of one consolidated judgment relating to a family dispute between the parties. 2. Facts are that Mst. Hafizan was married to Yasin on 13-3-1977 when she was of 14 years 5 months and 25 days. Since the parties could not proceed in unison under the marriage contract, a suit for divorce wa» instituted by Mil Hafizan. The grounds urged in support of the claim for divorce were (i) habitual cruelty (ii) misappropriation of the property (Hi) infamous way of living by the defendant, (iv) old age of the defendant husband and (v) extreme dislike and hatred. Muhammad Yasin entered appearance, filed written statement and controverted the averments made Mohammad Yasin, who produced his evidence. Vide order dated 29 11-1980 Mian Khalid Saeed Akhtar, learned Judge Family Court, Rasur dismissed the suit for divorce and decreed the claim of Mohammad Yasin for restitution of conjugal rights. An appeal was filed against the above noted decision before learned District Judge, Kasur. This appeal was placed on the file of learned Additional District Judge, Kasur. The appeal was dismissed on 9-1-1984. In the result, claim for divorce was dis allowed and for restitution of conjugal rights succeeded. Judgments of the courts below refusing relief of divorce, have been brought under challenge in constitutional jurisdiction by Mst. Hafizan. Parties'counsel have been heard. 3. Mr. Abdullah Khan Dogar, Advocate, contended that suit for restitution of conjugal rights filed at belated stage when suit tor divorce had reached an advanced stage, could not have been consolidated with the latter suit. Per mandatory requirements of Section 10 of the Code of Civil Procedure made applicable to the proceedings before Family Courts, resti tution suit was liable to be stayed till such time a final decision was recorded in the divorce suit. Consolidation of the suits at the stage, it had been ordered, caused serious prejudice to the rights of plaintiff in the earlier suit. It was also contended that the plaintiff Mst. Hafizan after the suits were consolidated, had not been afforded an opportunity of leading evidence in rebuttal of issue No. 4 This too has been prejudiced her rights. Further point was taken that Mst. Hafizan at too time of her marriage as is evident from the birth entry, was minor and as such even in the absence of pleadings, issue and the evidence on the point, was entitl-d to a decree of divorce on the ground of having exercised option of puberty. In support, relied on PLD 1953 Lahore 131, PLD 1957 Lahore 615 and PLD 1965 Peshawar S, to state that the option stand validly exercised with a simple declaration by the wife that she was not prepared to accept her counter part as her husband. In this, he stated, that the plaintiff had in unequivocal terms expressed that she did not accept Muhammad \asin as her husband and this was enough to order dissolution on the ground of exercise of right of option of puberty. It was not at all necessary to state specifically the facts in support of exercise of such right in the plead ings. The court in its constitutional jurisdiction could take notice of such a plea even in the absence of pleading, issue, evidence and finding of the Courts below. Learned counsel, lastly contended, that the plaintiff in her plaint had specifically stated that she had developed dislike and hatred and that she could not live for a moment with her husband. This statement in pleading was supported by her statement in Court. In consequence it was asserted that in the presetted of the material available on record this was a good case for khula divorce and the courts berow have acted illegalls in not bestowing their attention to the plea of khula raised by the plaintiff. Further it was stated that evidence on record had been grossly misread by the courts below in finding the issues against M tf. Hafizan. Evidence recorded was read out to me in court On point of khula, learned counsel relied on the case Abdur Rahira vs. Mst. Sbahida Khan (PLD 1984 SC 329), Riasat All vs. Family Court and another (i984 CLC 1325) and contended that when evidence on record was sufficient to decide the issue of khula, the .courts were ooligated to attend and decide whether wife in .the presence of the available material was entitled to separation through khula. Ch. Arshad Mahmood, Advocate, learned counsel appeared in defence of impugned order. He submitted that the Family Court which had the exclusive jurisdiction to entertain, rests on the court. It is equally true that in the discharge of this duty, the court is assisted by lawyers representing the parties. Absence of the proper assistance however does not absolve the court of its primary duty to have a look on the pleadings of the parties and then frame correct and proper issues arising therefrom. Purpose of framing of the issues is to invite the attention of the parties to the real points needing conideration on which they are supposed to bring evidence. Looked at the mattar from this angle, I find that the learned Judge Family Court bad failed in its duty to frame a proper issue which has prejudiced the real trial of the controversy. Trial Court has not adverted to the plea of khula, obviously for the reason that there was no such issue present to the mind of the learned Trial Judge. In appeal, however, learned Additional District Judge in paragraphs 8 and 9 of the judgment has adverted to the plea of khula and observed ; 'The learned counsel for the appellant further argued that the parties cannot live together within the limits prescribed by Al-mighty God and she is entitled for the decree of dissolution of her marriage on the basis of khula. The learned counsel for the respondent has drawn -my attention towards the fact that the plaintiff-appellant failed to substantiate the fact. From the perusal of the testimony of the plaintiff-appel lant it is obvious that she had simply stated that she cannot live together with the defendant-respondent as she had developed hatred against him. It isworth mentioning that the mere saying that she cannot live with the defendant is not sufficient for the dissolution of her marriage on the basis of khula. The learned counsel for the plaintiff-appellant miserably failed to point out the circumstances wherein the spouses cannot live together within the limits ordained by Al-mighty God. In a case of Full Bench Mst. Balqees Fatima vs. Najmul Ikram Qureshi [P.LD t 1959 (W.P.) Lahore 566], plea of khula was allowed to be raised being a pure question of law at the stage of second appeal. In Riasat All vs. Family Court and another (1984 C. L. C. 1325), a decision from the Karachi jurisdiction, it was observed ; "On the evidence led by the respondent No. 2, in my view, khula, could be granted by the learned Family Judge. In so far as the contention relating to absence of prayer in the plaint filed by respondent No. 2, it may be observed that in para. 8 of the plaint it has been stated by respondent No. 2 that she bad developed strong aversion against the petitioner and she would not be able to live with the petitioner as bis wife within , the limits prescribed by Shariat. The prayer is for dissolution of marriage and in view of the contents of the plaint it is apparent that dissolution of marriage was sought in the alternative on grounds of khula also. As regards raising of an issue, in my view, there is an issue about dissolution of marriage and even otherwise on the basis of evidence that may come on record, a Family Judge is competent to dissolve the marriage on grounds of khula if a case is made out". Supreme Court of Pakistan in the case of Abdul Rahim has discussed, if permitted to say so with imrnense respects, exhaustively the question of khula and reiterating its earlier views has given guide lines for Courts called upon to decide issue of khula divorce. In the case under cosider tion, may be in the absence of a distinct issue' of khula enough material could not been brought on record by the plaintiff. Plaintiff was of a very young age when she entered into a contract of marriage with defendant who was stated to be of old age. She lived with him for a short while and then separated. Admittedly there is no issue out of this wedlock. Mr. Abdullah Khan Dogar, Advocate, suggested that the respondent was debilitated. Something was said about his physical appearance/physique also and it was stated that due to this difference in age and physical condition of Muhammad Yasin, it was not at all possiole for A/if Hafizan to live with him as his wife and perform matri monial obligations. Muhammad Yasin is not present in Court So nothing need be said about the statement made by learned counsel for the peti tioner. It is for the trial court to examine this aspect of the matter also. In the result of what has been stated above, 1 find that the controversy has not been properly resolved by learned Judge Family Court. One course open to me was to 'remand the case back to learned Additional District Judge to redecide the question of khula in the light of the material available but then on reconsideration I decided to send to the case the Judge Family Court for it was his function first to determine the controversy in the light ol the averments set out in the plaint. It is well established that when a court or a tribunal is vested with jurisdiction, it is that Court or Tribunal which has to exercise its jurisdiction first and must be allowed to do so. Exercise of that jurisdiction by a higher court/tribunal without allowing the former to exercise it may be usurping the jurisdiction of the former court/ tribunal which is permissible in law. In the result both the writ petitions are allowed, judgments dated 29-11-1980 and 9-1-1984 passed by the learned Judge Family Court and learned Additional District Judge in appeal are set aside and declared to have been passed without lawful authority. In consequence the suits are remanded to learned Judge Family Court for decision afresh on issues (recast) and khula to be framed, after affording an opportunity to the -parties to lead evidence afresh. Parties are directed to appear before learned Judge Family Court on 3-3-1985. Since respondent Muhammad - Yasin is not present today, the Judge Family Court in case of his non-. appearance, is directed to issue a notice to him. Costs to be borne as incurred. (M1Q) Petitions allowed.
PLJ 1985 Lahore 282 [DB] PLJ 1985 Lahore 282 [DB] Present: C. A. rahmrn & akhtar hassian, JJ MUHAMMAD YOUSAF and Another Appellants versus NIGH AT,FAYYAZRespondent Regular First Appeal No. 202 of 1983, heard on 20-5-1985. Family Courts Act, 1964 (W. P. Act XXXV of 1964) S. 14Family JudgeDecree passed byAppeal againstForum forFamily court decreeing respondent's claim 'of dower for Rs. 60,000 in case presided over by CivilJudeeHeld : Decree to be appealable only before District Judge Held farther : Pecuniary limits on civil side being totally irrelevant, amount decreed to have no place in determining forum of appeal. [P. 283J/1 & B Mr. M. Zafar Ch. , Advocate for Appellant. Mr. Wajihullah Khan, Advocate for Respondent. Date of hearing : 20-5-1-985. order Akhtar Hassan, J.This R.F A. arises from a decree dated 4-10 1983 of the learned Judge Family Court, Sialkot whereby he allowed the resoondent-widow's claim of do^er for Rs. 60.000/- against the estate of her deceased husband. It has been filed in the High Court presumably relying upon section 18 of the West Pakistan Civil Courts Ordinance, 1962, as the value of the suit exceeded Rs. 5Q.OOO/-. 2. An objection has been taken that since the Family £ourt was presided over by a Civil Judge, the forum of appeal was the District udge, rather than the High Court. Section 14 of the Family Courts Act, I9b4, was cited in this behalf laying considerable stress on its non obstante clause by which applicability of all other laws for the time being in force to appeals arising from the decisions of Family Courts was excluded. 3. There was considerable force in the contention raised on behalf of the respondent-lady. Section 14 ibid is more than clear in overriding .all other laws on the point. Admittedly the Family Court was presided! over by a Civil Judge and whatever the amount of dower, the decree shallK be appealable only before the District Judge. The contention that sec-l tion 18 of the West Pakistan Civil Courts Ordinance, 1962, applied to this case was based upon a sheer mis-conception. All other laws including the/ said Ordinance were overridden by section 14 of the Family Courts Act,' 1964, and hence there was no occasion whatsoever to treat i» a decree of an ordinary Civil Court . For material disputes including dower, the jurisdic ion exclusively lay with Family Courts created under the special statute whose provisions will obviously prevail against all other laws. According to ection 14 referred to above, the amount of dower has no relevance as it could be allowed by a Presiding Officer who may otherwise be a Civi/. Judge Illrd Class, but once he is notified as a Family Court bis pecuni iryj limjts on the civil side will be totally irrelevant and likewise the amount! decreed will have no place in determining the forum of appeal. Conver-| sely speaking, what would deterraine the forum of aopial would be the status of the Officer presiding over the Family, Court, namely, either the District Judge or as the case may be a Civil Judge. In the case of the latter, however, the appeal will lie. before the District Court without keeping in mind the quantum of dower amount. We do not have jurisdic tion to entertain this appeal. It be returned. ' 4. (TQM) Appeal returned.
PLJ 1985 Lahore 290 PLJ 1985 Lahore 290 Present : ch. amjad khan, J ABDUL KARIM and AnotherPetitioners versus ALI GAUHAR-Respondent Civil Revision No. 364-D of 1985, decided on 7-4-1985. (1) Civil Procedure Code, 1908 (V of 1908)- S. 11 High Court Revisional jurisdiction ofEvidence- Appraisal of Witnesses produced by petitioners failing to carry conviction with two courts below No jurisdictional defect of nature of non-reading or misreading of evidence pointed outHeld : High Court not to enter upon re-appraisal of evidence. -[P. 29l]B (Jij Punjab Pre-emption Act, 1913 (I of I9i3) S 4Pre-emptionRight ofAbandonment ofHeld: Estoppel and waiver to arise from positive acts and not from mere omission unless duty to act be enjoined by lawLand in dispute allegedly offered for sale through proclamation made on loudspeakerPlea of waiver how ever not raised with any precision in written statementEvidence led by petitioners also disbelieved by two courts below for adequate reasonsMeld: Proclamation of intended sale coupled even with plaintiff's inaction not to be adequate basis for inferring abandonment of his legal right, [Pp. 291 & 292]^ & C _ Mr. Jariullah Khan, Advocate for Petitioner. Date of hearicg : 19-2-1985. order Record of the pre-emption suit filed against the petitioners was summoned to verify the contention of the learned counsel that the respon dent pre-emptor had not paid the requisite Court-fee despite an opportunity for the purpose provided to him by the learned trial Judge. The same was received and perused with the assistance of the learned counsel who did not point out any previous order passed for the purpose and, in fact, there is no such order on the record. The question of Court fee was considered by the trial Court only in its final judgment dated 10 11-1984. 2. Learned counsel, however, argued that the Courts below have erred in not giving effect to the plea of waiver of right of pre-emption, raised against the respondent. He submitted that land in suit, and also an Ahata, was offered by the vendor for sale through a proclamation made on a loud-speaker in the mosque and even though the respondent purchased the Ahata, yet, he not only did not evince any interest in purcha sing of the land in dispute but also specifically declined to purchase it. I find that the plea of waiver was not clearly raised in these terms in the written statement In para. 4 thereof, after denying the relsvant para, of the plaint, it is stated that the plaintiff was present at the time of the bargain wh : ch was struck after publically proclaiming it and that the plaintiff was aware of the bargain for which he was consulted before the registered sale but he refused to exercise his right. This plea was sought to be supported in the evidence on two counts, nameh, that the sale was made after proclaiming the intention thereabout through, a loud-speaker in the mosque and that an Ahata was also offered for sale with the land in suit, whereof the plaintiff purchased the Ahata but refused to purchase the land in suit. Contention of the learned counsel has not impressed me. Wai vet is never a questtion of pure law and the evidence led by the petitioners has been disbelieved by the two Courts below' for audequate reasons. The plea on the point, as noticed above, was not raised with any precision in the written statement and there is no documentary evidence brought forth regarding the sale of Ahata. Rather, the witnesses on the point produced by the petitioners have not been able to state even the price for which the Ahata may have been sold. Moreover, there, is no reliable evidence produced in support of the contention which bar been .sought to be proved through such witnesses as are not difficult to bs procured. The two Courts below have rightly refused to accept theie evidence be sufficient for the purpose. In Kidar Natb and others v. Bagb Singh (A.I. R. 1937 Lahore 504) a Division of this Court held : "To deprive a person of any legal right that he possesses, there must be clear and cogent evidence on record justifying that course and the mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the prospective pre emptor had knowledge of the sale would not be enough to prove that he had positively relinquished the enforce ment of his right." /u vruu, 3n a re-L of the! 8 The witnesses produced by the petitioners failed to carry conviction with, the two Courts below and it is not for this Court to enter upon appraisal of the evidence because, there is no jurisdictional defect nature of non reading or misreading of evidence pointed out by the learned/ counsel. Even if the assertion about proclamation may be correct, I do not see how can the petitioners base the plea of waiver thereon with any success because there is not even an assertion made to the effect that the proposed sale was proclaimed to be intended to be made for any [sic] [Division Bench specified amount. Requirement to specifically mention the amount, for which the intended sale may be made, was highlighted in the case Qaim Din v. Said Abnifid and another (PL D 196? Lahore 1171) by following, among others Division Bench judgment of this Court in the case of Natha Singh and others v. Sundar Singh and otben (A.l.R. 1926 Lahore 10), wherein it was held : 'Where the vendor offered property to the pre-emptor at a price higher than that ultimately accepted by him from vendee, the pre-emptor is not estopped from asserting his right by reason of his refusal to buy the property." Such also is the ratio of the judgment in Ghulam Muhammad and others v. Karam Dad etc. (P.L.J. 1983 Lahore 295). 4. Again, the proclamations of the intended sale, even if it may have been made as alleged, coupled even with the plaintiff's inaction, is not an adequate basis for inferring abandonment of his legal right. Estoppel and waiver may arise from positive acts but not from mere missions, unless a duty to act is enjoined by law. I am not aware of any law which may have obliged the respondent-plaintiff to act in consequence of the alleged proclamation and none has been pointed out by the learned counsel. It appears that the plaintiff did not act unwisely in staying away from the areas so that he may not enter into competitive bidding to unduly raise the price. He was within his ights o have waited for the price to be settled so as to enable him to decide as to whether it would be worth-while to get the land for such a price. Learned Additional District Judge has correctly repelled the plea of waiver on the authority of B«qri and 4 others v. Salebon «od 3 others (P L D. 1972 S.C. 133) and Gholam Muhammad's case (ibid). Contention of the learned counsel has no merit and the same is repelled for all the foregoing reasons. 5. There is no force in the Ciril Revision which is accordingly dismiss ed in limint. (TQM) Petition dismissed.
PLJ 1985 Lahore 292 [Rawalpindi Bench] PLJ 1985 Lahore 292 [ Rawalpindi Bench] Present : lehrasap khan, J . KHAYAL MUHAMMAD & SONS, Octroi Contractor, Municipal Committee, Jhelum Petitioners versus CHAIRMAN, Municipal Committee, Jhelum and 3 OthersRespondents Writ Petition No. 67 of 1985, decided on 26-6-1985. (i) Punjab Local Government Ordinance, 1979 (VI of 1979)
S. 170 (2)ChairmanDelegation of powers byHeld : Chair man to be competent to delegate his original powers to Vice Chair man, any ember of local council or any of his officersSuch delegation to be for specific period or till further ordersPower delegated to him, however, ot to bs further delegatedHeld further: Any provision to contrary contained in subordinate legislation to have no legal effect, [P, 299]E (ii) Punjab Local Government Ordinance, 1979 (VI of 1979)
S. 182Rules made under repealed enactments Saving of Municipal Octroi Rules, 1964 framed under Municipal Administra tion Ordinance, 1960 (expressly) saved on repeal of such Ordinance Act replacing such Ordinance also subsequently repealedHeld : Rules not inconsistent with provisions of Punjab Local Government Ordinance, 1979 having been saved under S. 182 of Ordinance, Muncipal Octroi, Rules, 1964 to be deemed to have been made under Ordinance. [P. 297J5 (iii) Municipal Committee Octroi Roles, 1964
Rr. 216 & 226 (d) (/)~Octroi- Lease of -r Effect ofAssessment orderAppeal againstCompetency ofRight of appeal expressly taken away in case where collection of octroi leased out by Municipa lity - Vice Chairman, however, passing impugned order in appeal against assessment orderHeld : No appeal being competent in case, Vice Chairman to lack jurisdiction. [P. 298JD PLJ 1980 SC 418 ; AIR 1927 PC 244 ; AIR 1928 Lah. 627 ; PLD 1956 SC 254 ; PLJ 1975 SC 331 & PLD 1958 SC 437 ref. (ir) Municipal Committee Octroi Rules, 1964
Rr. 216 & 226 (d) (j) read with Provisional Constitution Order, 1981 (CMLA's I of i981) Art. 9OctroiLease ofTaxation Officer Assessment byAppeal against Competency of Collection of octroi in municipality leased in favour of petitionerHeld : R. 216 of Municipal Committee Octroi Rules (relating to appeals) to have no application by virtue of provisions of rule 226 (d)(i) Impugned order passed by Vice Chairman of Municipal Committee in appeal against assessment made by Taxation OfficerHeld : Vice Chairman to aave »o jurisdiction to entertain appeal of contesting respondents and to pass impugned order. [P. 296, 297 & 298]^ & C (v) Writ Jurisdiction- Exercise ofHeld : High Court in exercise of its jurisdiction not to enter into realm of facts. [P. 299JF Ch. Hamiduddin, Advocate for Petitioner. Ch. Mahmood Ahmed, Advocate for Respondents 1 to 3. Messrs. Shahid Iqbal& Khalid Iqial Qazi, Advocates for Respondent No. 4. Dates of hearing : 14-5 & 22-6-1985. judgment As a result of public auction, the right of collection of octroi income of Municipal Committee, Jhelum , was leased in favour of the petitioner, viz. M/s Khayal Mohammad and Sons, against the highest bid of Rs 62,26,000 for the period from 1-7-1984 to 30 6-1985. Thus, since 1-7-1984, the petitioner has been collecting the octroi income including the octroi duty levied on goods imported for use, consumption and sale within the municipal limits of Jhelum Municipality . 2. Respondent No. 4, /. e, Pakistan Tobacco Company Limited, Jhelum , is the manufacturer of cigarettes of different brands io its factory 6. It is note-worthy that \ide order dated 1-12-1984 (Annex L), Raja Muhammad Afzal Khan, Chairman, Municipal Committee, Jhelum, dele gated all the powers of the office of Chairman to Chaudhary Muhammad Boota aforesaid councillor under section 170 (3) of the Punjab Local Government Ordinance, 1979, read with notification No. SO (V)-5-8/81 dated 20 4-1982, till further orders. It was specified in the order delegatin powers to Chaudhary Muhammad Boota councillor that as Raja Muhammad Afzal Khan was proceeding abroad and was hence unable to perform his official duties, therefore, in exercise of powers vested in him under rule 9 of the Punjab Local Councils Conduct of Business Rules, 1980, it was felt expedient to delegate powers to any councillor as there was no Vice Chairman of the Municipal Committee at that time. 7. It is a common ground between the parties that Raja Muhammad Afzal Khan, Chairman, Municipal, Committee, Jhelum, had returned from abroad on 24-12-1984, while the order accepting the appeal was passed by Chaudhary Muhammad Boota Councillor/Vrce Chairman on 17-1-1985. 8. The petitioner has assailed through the instant constitutional peti tion the aforesaid order dated 17-1-1985 passed by Chaudhary Muhammad Boota Councillor/Vice Chairman, in exercise of the delegated powers of Chairman Municipal Committee, Jhilum, whereby he has set aside the order dated Il-li-1984, cancelled the demand notics dated 27-t 1-1984, passed and issued by the Chief Officer/Taxation Officer, Municipal Com mittee, Jhelum, and has accepted the appeal filed by respondent No. 4 under section 216 of the Municipal Committees' Octroi Rules, 1964. 9. The validity of the impugned order has been challenged mainly on the following grounds : (i) that no appeal against the order of the Taxation Officer was legally competent inasmuch as in case of the Municipal Committee where the right to collect octroi is leased, rule 216 of Chapter XXVUl of the Municipal Committees Octroi Rules, 1964, providing appeals against the assessment, is not applicable by virtue of the provisions 01 rule ^26 (d) (i) of Chapter XXX ibia ; (ii) that Cbaudhary Muhammad Boota Councillor/Vice Chairman was not competent to entertain and dispose of the appeal of respon dent No. 4, culminating into the impugned order, because power to hear appeals could not be delegated to him by the Chairman and even such delegation had come to an end on the return of the Chairman himself from abroad ; and (Hi) that on merits also, the impugned order was not sustainable as respondent No. 4 had deliberately and persistently evaded the payment of octroi charges for a full period of four months from 1-7-1984 to 27-. 1-1984 ; even by now the legal liability of the said respondent remains un-discharged. 10. Respondent No. 4, while contesting the under consideration Writ Peti -tion, has urged in its parawise reply that the appeal against the order dated 11-11-1984, passed by the Chief Officer/Taxation Officer, was legally compe tent and within the jurisdiction of the Chairman, Municipal Committee, Jhelum, and that Chaudhary Muhammad Boota Councillor/Vice Chairman, |n exercise of his delegated powers, could lawfully pass the impugned order. It has also been urged by the said respondent that there had not been any intention on the part of respondent No. 4 to evade octroi charges; respondent No. 4 admitted the liability to pay octroi from the very incep tion ; the practice of payment of octroi through cheques on a periodical basis had been in existence since long, and the usage has thus attained the force of law. 11. Regarding the first contention of the petitioner that no appeal against the order of the Taxation Officer was competent under rule 216 of the Municipal Committees Octroi Rules, 1964, by virtue of the provisions of rule 226 ibid, the relevant provisions have been noticed and considered. Chapter XXVIII of the Municipal Committee Octroi Rules, 1964, deals with appeals. It is provided in rule 216 of the said chapter that "notwithstanding anything to the contrary contained in the West Pakistan Municipal Committees (Appeals) Rules, 1960, appellants against the assess ments made aud orders issued under these rules shall lie as specified in Appendix G." As per Appendix'G'to these rules in case of an order regarding assessment made by' the Taxation Officer, appeal lies to the Chairman. But, it is note-worthy that Chapter XXX of the Municipal Committees Octroi Rules, 1964, deals with cases of lease of octrpi and it has been provided in rule 226(</) (i) that in respect of a municipality, where the collection of octroi is leased, the rules contained in Chapter HI (except rule 13), Chapter XIX (except rules 146 and 147), Chapter XX, Chapter XXI except rules 164, 166 and 169) Chapter XXII, Chapter XXVI and Chapter XXVIII (except rules 218 and 219) shall not apply. Thus, it is evident that where the collection of octroi in a municipality is leased, rule 216 of Chapter XXVIII shall not apply. In case of Jhelum Municipality , the octroi has been leased in favour of the petitioner and, therefore, case. rule 216, dealing with appeals, has no application in the present 12.. It is true that the Municipal Committees Octroi Rules, 1964, have been framed in exercise of the powers conferred by sections 35, 37, 38, 39, 41 and 121 of the Municipal Administration Ordinance, 1960, read with items 13, 14, 23 and 24 or the Fourth Schedule thereto. The Municipal Administration Ordinance, i960, was repealed by the Punjab Local Government Act, 1975, (Act XXXIV of 1975), but the saving clause of the repealing Act saved the rules framed under tbs Municipal Administration Ordinance, I960, so far as they were not inconsistent with the provisions of the said Act. Under section 182 of the Punjab Local Go.vern.nent Ordinance, 1979, (Punjab Ordinance VI of 1979), which holds the field at the moment, the Punjab Lacal Govern ment Act, 1975, was repealed. It has been provided in sub-section (2) of section 182 ibid : "notwithstanding the repeal of the Punjab Local Government Act, 1975, any appointments, rules, regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared or executed, contract entered into, suit instituted, rights acquired, claims made, legal or administrative proceedings or action taken under the said Act or under such enactments as were repealed by the said Act, shall, so far as it or they are not inconsistent with the provisions of the Ordinance, be deemed to have bren respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken under the Ordinance." Thus, there can be nlhardly any doubt that the Municipal Committees Octroi Rules, 1964, {which were not inconsistent with, the provisions of the Punjab Locaj irule 226 of the said rules and, therefore Chaudhary Muhammad Boota JCouncillor'Vice Chairman of the said Municipal Committee, had no [jurisdiction to entertain appeal of the contesting respondent and to-pass 'the impugned order. In Mohammad Akram vs. Abdul Ghafoor etc. (P.L.J. 1980 S. C. 418), it was held by the Supreme Court of Pakistan that when an appeal by a municipal servant in respect of a service matter against the order of Municipal Committee or Administrator was not competent under the relevant rules, no appeal would lie before the Deputy Commissioner as a controlling authority, as he lacked jurisdiction to entertain such appeal. In Dtlbi Cloth and General Mills Co. Ltd. vs Income tax Commissioner, Dtlbi and another (A.I R 1927 Privy Council 242), it was held that under section 6 -o(2) and (3), Income-tax Act, 1922, no appeal to the Privy Council was competent unless the case was certified as fit by the High Court. In Bbai Kirpa Hugh vs. Risaldar Ajaipal Singh and others (A.I R. 1928 Lahore 67), it was ruled that right U> file appeal is a vested right, but it can be abolished expressly or by necessary implications by a statute. This view was fallowed by the Supreme Court of Pakistan in Mohammad Ishaq vs. The State [P. L. O. 1956 S. C. (Pak.) 256]. In Ib abim vs. Mohammad Hussain (P. L. J. 1975 S. C. 331), it was held that unlike suits of civil nature, which can be instituted independently of any statute, right of appeal being a creature of statute cannot be assumed unless expressly given by the .statute. In The Tariq Transport Company, Lahore vs. The Sargodha-Bhera Bos Serrice, Sargodha and two others [P.L.D. 1958 S. C. (Pak ) 4j7j, it was ruled that in cases of absence of jurisdiction, writ of certiorari can be issued to quash a proceeding even if an alternate remedy is available. The ratio decidendi enunciated in the aforementioned judicial precedents supports the conclusion already arrived at that when the statutory rules have expressly taken away the right of appeal in octori cases, in case of municipalities, where the octroi has been leased, no appeal is competent and thus in the under consideration case, the Councillor/Vice Chairman, who passed the impugned order, lacked jurisdiction in the matter. 15. The petitioner has also challenged the authority of Chaudhary Mohammad Boota Councillor/Vice Chairman who passed the impugned order on the ground that the Chairman i. e. Raja Mohammad Afzal Khan could not delegate his power of hearing of appeal under tha relevant rules to the former and that at least such delegated powers came to an end when the latter himself returned from abroad. This argument, when considered and analysed in the light of the relevant provisions of the Punjab Local Government Ordinance, 1979, turns out to be without substance. Section 170 (3) ibid provides : "A chairman may delegate all or any of his powers under the Ordinance or the rules or bye-laws, not being powers delegated to him under sub-section (2), to the Vice Chairman or any member of the local council, or any of his officers." It thus transpires that Chairman can delegate his original powers to the Vice Chairman or any member of the council, or any of his officers. He cannot, of course, further delegate the powers delegated to him by the local council concern ed. The power to hear appeal against ths order of Taxation Officer are vested under the statutory rules vii. Municipal ommittees Octroi Rules, 1964, in the Chairmam himself and, therefore, he could validly delegate these powers to the Vice Chairman, or a councillor or any of his officers. Any provision to the contrary contained in the subordinate legislation viz. the Punjab Local Councils (Business) Rules, 1980, rules 9 & 10 whereof have been relied upon by the learned counsel for the petitioner, being repugnant to the provisions of the Ordinance, cannot have any legal effect It has also been noticed that delegation under section 170 (3) of the Punjab Local Government Ordinance, 1979, can be for a specific period or till tuither orders. In ihe present case, such delegation was till further orders and, therefore, r i tru < f Raja Mohammad Afzal Khan, Chairman, from abroad shall not affect 'he validity of the delegation made in favour of Chaudhary Mohamin. H.<ota Councillor/Vice Chairman. Similarly, Chaudhary Mohammad boota's having become Vice Chairman in the meantime, would not run counter to his authority to exercise the delegated powers. 16. So far as the merits of the case are concerned, this Court inl exercise of its extraordinary constitutional jurisdiction, cannot enter into' F the realm of facts, it has, however, been noticed that in addition to the octroi due from the contesting respondent, 10 times of such octroi has also been assessed against the said respondent on account of composition fee which under the relevant rules can only be charged it the person whose goods have been seized is prepared to pay octroi and composition fee, otherwise steps can be taken to prosecute him for the offence of evasion of octroi. In the present case, there is nothing on the record to suggest as to whether respondent No. 4 has ever expressed willingness to pay the composition fee. In this view of the matter, no finding can be recorded about the merits of the case and particularly about the validity of the order pissed by the Taxation Officer. In that regard, parties may have recourse to appropriate forum. 17. In the light of the above "conclusions, it is held that Chaudhary Mohammad Boota Councillor/Vice Chairman, in the purpoted exercise of his delegated powers as Chairman, Municipal Committee, Jhelum, lacked jurisdiction to pass the impugned order dated 17-1-1985 inasmuch as no -appeal was legally competent. The Writ Petition is, therefore, allowed to this extent that the impugned order dated 17-1-1985 is declared to be without lawful authority and of no legal effect. It is further directed that respondent No. 4 shall pay the costs of this Writ Petition to the petitioner. (TQM) Petition allowed.
PLJ 1985 Lahore 299 PLJ 1985 Lahore 299 Present : muhammad ilyas, J MUHAMMAD SIDDIQUE and 6 OthersAppellants versus BOOTARespondent FAO No. 29 of 1982, decided on 4-2-1985. (i) Civil Procedure Code, 1908 (V of 1908) O. XLIU, R 3-Remand order Appeal againstPresentation of Notice beforeRequirement ofAppeal against order of Addi tional District Judge remanding case to trial court filed serving its notice on respondent and obtaining acknowledgement of rceeipt thereofHeld : It being necessary for appellants to give notice of appeal to respondent before its presentation, appeal filed without such notice to be incompetent. [P. 303J-D & E PLJ 1984 SC 1 ; PU 1984 Lah. 398 & 1984 CLC 1287 rel. (ii) Chril Procedure Code, 1S08 (V of 1908)
O. XLIII, R. 3AppealPresentation of Notice beforeRe quirement ofHeld : Notice to be required to be given to respon dent before filing ppeal during pendency of suit irrespective of fact of appeal being preferred against order of trial or appellate court, [P. Wl]A & B (ill) Civil Procedure Code, 1908 (V of 1908)-
O. XLIII, R. 3 Presentation of appealNotice before Suit pendingMeaning ofHeld : Suit remanded by Additional District Judge to become suit pending before trial court as soon as order of remand be made. [P. 302JC (it) Legislature
Advice toRevision petitionDelay in disposal ofProvisions of rules 3 & 4 of O XLIII of Civil Procedure Code 1908 (V of 1908) not taking care of revision petitions or applications made therein Desirability of extending such rules to revision petitions as well expressed by High Court. [P. 3031F Ch. Aziz Ahmed & Malik Muhammad Yousuf Javed, Advocates for Appellant. Ch. Mushtaq Ahmed Khan, Advocate for Respondent. Date of hearing : 22-1-1985. judgment Facts giving rise to this appeal are that the respondent, Boota, filed a suit against the appellants, Mubamma'd Siddiq and others, for possession of certain land through pie emption. The suit was resisted by the appel lants, inter alia, on the ground that it was for partial pre-emption inasmuch as one of the vendees, namely, Muhammad laayat, had not been impleaded as a defendant. This plea was accepted by the Civil Judge who was seized of the suit. Accordingly the suit was dismissed by him. The respondent preferred an appeal ;against the judgnunt and decree of the learned Civil Judge. Alongwith this memorandum of appeal, he filed an application, under Order VI, rule 17, of the Code of Civil Procedure, for permission to amend the plaint so as to implead Muhammad Inayat as a party to the suit. This application was allowed by the learned Additional District Judge who heard the appeal. Resultantiy, he accepted the appeal, set aside the judgment and decree of the learned trial Court and remanded the suit under Order XLI, rule 23A, of the Code of Civil Procedure, with the direction that the amended plaint shall be filed before the Court below which shall adjudicate upon the suit afresh after allowing an opportunity to the parties to lead evidence, if they so liked. Feeling aggrieved by the order of the learned Additional District Judge, the appellants have come up in appeal to this Court. 2. A preliminary objection raised by learned counsel for the respondent against the instant appeal was that it was not competent inasmuch as no notice was given to the respondent, under Order XLIII, rule 3 of thj Code of Civil Procedure, before filing the appeal. In this connection, reliance was placed by him on Mrs. Dino Manekji Chinoy and others v. Mohammad Matin (PLJ 1984 SC. 1), Siraj Din and others v. Province of Punjab (1984 CLC 1287) (Lah.) and Muhammad Shafi v. Sb. Munammad Amio and another (PLJ 1984 Lah. 398). 3. In reply, it was contended by learned counsel for the appellants that rule 3 was not attracted to the instant appeal. His argument was that rule 3 was applicable to an appeal against an interlocutory order passed a trial Court but since the order assailed in the present appeal was not such an order, it was not necessary to give notice of this appeal to the respondent before its presentation. It was also maintained by learned counsel for the ppellants that there was no suits pending before the trial Court at the time when the appeal was presented, because the amended plaint had not been filed by then. Additionally, it was submitted by learned counsel for the appellants that the appellants had given notice of the appeal to the respondent on the same day when the appeal was filed. 4. Rules 3 and 4 were inserted in Order XLIII, of the Code of Civil Procedure by means of the Code of Civil Procedure (Amendment) Ordinance, 1980. These rules read as follows : "3. Notice before presentation of appeal.H) Where an appeal against an order is preferred during the pendency of a suit, the appellant, shall, before presenting the appeal, give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and obtain an acknowledgment of receipt thereof for the information of the Appellate Court. (2) On receipt of notice referred to in sub-rule (1), the respon dent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine. 4, Application of rule 3.The provisions of rule 3 shall, mutatis mutandis, apply to all applications filed before an appellate Court during the pendency of a suit." 5. According to rule 3, notice is required to be given to the responent before presenting an appeal, during the pendency of a suit, and rule 4 obliges a party making any application before the appellate Court, during the pendency of a Suit, to give notice of the application to the opposite party. Object behind these rules appears to be to ensure that disposal of suits is not delayed by filing appeals on flimsy grounds or by making frivolous applications before the appellate Courts during the pendency of suits. According to the said rules, by which caveat system has been prescribed, the party against whom such appeal or application is filed can oppose it at the limine stage, with the permission of the Court, and can be awarded costs in the event of dismissal of the appeal or application, as the case may be in limine- There is nothing in rule 3 suggesting that the appeal should necessarily be against an order passed by the trial Court. If the makers of the rules intended to confine the scope .of rule 3 to the orders of the trial Court only, they would have instead of the words "Where an appeal against an order is preferred during the pendency of a suit", ngfl 99currjp$ in rule 3, v?4 th$ words, ^where. a^n appeal against the appeal inasmuch as it was required to be presented to this Court along with the appeal. This was however, not done by them. It is not their case that on 13th February. 1984 they gave notice to the respondent or his advocate, by band, and after getting an acknowledgment of receipt thereof presented the appeal on the same day As indicated above, the appellants' plea is that the notice was sent by registered post, acknowledgment due. Question of their obtaining acknowledgment receipt before filing the appeal, there fore, did not arise because the notice was despatched on the day when the appeal was presented. Copy of the impugned order, dated the 3rd Febru ary, 1982, was delivered to the appellants on 4th February, 1984 but they did n t give notice of the appeal for nine days following delivery of the copy to them In view of the period of limitation prescribed for filing the appeal, they could wait for acknowledgment of receipt of notice issued by them and then file appeal on getting the acknowledgment receipt but they hurriedly preferred the appeal much before expiration of the period of limitation, of course, at their own risk and cost There was no hurry in presenting the appeal because the appellants, being the vendees, were already enjoying possession of the land pre-empted by the respondent; and even if the respondent had quickly filed the amended plaint, as directed by the learned Additional District Judge, the suit was not likely to be decided before running out of the period of limitation. I may add here that aknowledgment receipt regarding the notice alleged to have been issued by the appellants has not been placed on the record even uptil this moment. In the circumstances, it is doubtful that the notice in question was actually despatched Even if it was despatched, it is of no help to the appellants becaus: there is no acknowbdtnent receipt or any other evidence showing that the notice was, in fact, delivered to the respondent. 8. In view of the above discussion, I hold that it was necessary for the appellant to give notice of tbis appeal to the respondent before its presentation but it was filed without serving its notice on the respondent and obtaining acknowledgment of receipt thereof. In view of the cases of Mrs Dino Maneltji Chinoy and other v Siraj Din and others and Muhammad Shan', cited by learned counsel for the respondent, it was conceded by learned counsel for the appellants that if it was necessary to give notice of the appeal to the respondent before its presentation, the appeal would not be entertainable and would be liable to be dismissed despite its having been admitted to a regular hearing I, therefore agree with learned counsel! for the respondent that this appeal is not competent. It is, accordingly, ie dismissed for being not entertainable, without expressing any opinion onj the merits of the appeal. Parties are left to bear their own costs. 9. Before closing, I would like to point out that it is not infrequently that disposal of suits is delayed not only by filing appeals but also by making revision petitions which ultimately fail. Provisions of rules 3 and -»! do not take care of revision petitions or the applications made th rein I Framers of the rules may, therefore, consider the desirability of extending! application of rules 3 and 4 to the revision petitions as well. 10. A copy of this judgment shall be sent to my learned brother Mr. Justice Irshad Hassan Khan, Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad . Another copy of it shall placed before my learned brother Mr. Justice Abdul Shakurul Salam, Chairman of the Rules Committee, constituted for this Court, under section 129 of the Code of Civil Procedure. (TQM) Appeal dwmiiied.
PLJ 1985 Lahore 308 PLJ 1985 Lahore 308 [ Rawalpindi Bench] Present: muhammad A slam mian, J MANAGING COMMITTEE Attock Industrial School , Morgan, Rawalpindi through Executive MemberPetitioner ^ versus PRESIDING OFFICER, Punjab Labour Court No. 2 Lahore and Another»-Respondents » Writ Petition No. 2028 of 1915, decided on 9-7-1985. (I) Constitution of Paki tan, 1973
Art. 199 read with Industrial Relations Ordinance, 1969 (XXIII of 1969)Ss. 25 & 2 (xiv) and Industrial & Commercial Employ ment (Standing rders) Ordinance, 1968 (W. P. Ord. VI of 1968) ">_ S. l(4)(fl)Industrial SchoolEmployee ofTermination of services ofChallenge toGrievance petition Competency ofIndustrial School in question not maintaining sufficient number of employe cas to attract provisions of Standing Orders OrdinanceSuch school also not industry and its employees enjoying no status of workers- Held : Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 1969 being not applicable, petition moved against termination of services in Labour Court under S. 25A of ndustrial Relations Ordinance not to be competentHeld farther : Labour Court having no jurisdiction to adudicate upon case, order of Labour Court to be declared as with out lawful authority and of no legal effect. [P.313]£> (II) Industrial & Commercial Employment (Standing Orders) Ordiauce, 1968 (W.P. Ord. VI of i968)
S. 1 (4) (a)Industrial SchoolApplicability of Ordinance to Itndustrial School in question not keeping requisite number of em ployeesEmployees of such school also not enjoying status of workersApplication of Ordinance not extended to institute by Govt. by issuance of any otification Held : Provisions of Ordinance not to be extended (to such school). (P.312]A (iii) Industrial Relations Ordinance, 1969 (XXVIII of 1969)-
S. 2 (xiv) IndustryDefinition ofPetitioner institution decidedby educational school being run on small scale for imparting techni cal education eld : Casual income from sale of articles produced by school at annual exhibition not to make such school industry 4 within definition given in Ordinance. [P. 312] (It) Master and Serrant ServantTermination of services ofChallenge toMaster competent to terminate services by one month's notice or one month's pay in lieu thereof eld : Suit for damages (only) in civil cou,rt to.be filed by aggrieved party. (P. 313JC (v) Industrial ft Commercial Employment (Standing Orders) Ordinance, 1968 (W. P. Ord. VI of 1968;- S. 1 (4) (fl)See : Constitution of Pakistan , 1973 Art. 199. [P. }D (vi) Industrial Relations Ordinance, 1969 (XXIII of 1969)
S. 25ASee : Constitution of Pakistan , 1973Art. 199, [P. 313]O Messrs Raza Hussain Shamsi & All Zafar, Advocates for Petitioner, Mr. Sadiq Muhammad Waraich, Advocate for Respondent No. 2, Dates of hearing : 25 & 26-5-1985. judgment The petitioner through this writ petition seeks a declaration to the effect that an order dated 23-8-1975 of respondent No. 1 is patently with out lawful authority and of no. legal effect. 2. The facts briefly are that respondent No. 2 made an application under section 25A of the Industrial Relations Ordinance, 1969, against the petitioner in the Junior Labour Court Rawalpindi questioning the legality of the order terminating her service by the petitioner on 5-3-1974 on maintaining that she was working in the petitioner's 'Industrial School since 1964. Her last pay was Rs. ISO/- plus other allowances. The service of respondent No. 2 was terminated without any reason. The termination was illegal and without any lawful authority. The post which she held was not abolished. She had been re-instated by the Labour Court vide order dated 23 2-1974 against the first order of termination of her service and again her service was terminated on 5-3-1974. The second order was mala fide based on personal dislikeness. She prayed for the re-instatement in service with all the back benefits. 3. The application was resisted by the petitioner which took up the position that respondent No. 2 was neither a workman nor a worker as defined by the Industrial Relations Ordinance, so the petition was not maintainable for lack of locus standi. Respondent No. 2's service was terminated and she was given a month's pay in lieu of the notice. Respon dent No. 2 refused to receive the money order. In any case the petitioner was willing to pay the same to respondent No. 2. The petitioner had full authority to terminate the service of the respondent and that too without assigning any reason .after giving one month's notice or one month's pay in lieu thereof, Respondent No. 2 had grievance against the petitioner. 4. The position of the petitioner as well as that of respondent No. 2 as gathered from the facts placed before the Labour Court is that the petitioner is an educational institution which imparts technical education to the female students in sewing, cutting knitting and needle work etc, where respondent No. 2 as admitted by her is a teacher. According to the petitioner in the school there are only two teachers and one servant. The school is being run by a Managing Committee which is competent to terminate the service of any of the employees. 5. The Junior Labour Court concluded that the West Pakistan Indus. trial & Commercial Employment (Standing Orders) Ordinance, 1968 was not-applicable to the petitioner's schqol, Thpr^ were th % req employees. in that sense " It was further observed ; "applying these tests to the individual cases we find that Christian Technical Training Centre is an educational and training establishment. If it is maintaining an industrial unit (a workshop) rendering services on payment, advertising its product, it is as an incidence of vocational education and of training programme designed to ensure joH opportunities to the trainees. Therefore, what is incidental to the main purpose cannot detract in any manner, from its being an educational institution". ; The University of Dehli and another v Ram Nath and others (A I, R. 1963 S C 1873), in this case it was held that reading section 2 (g), (j) and (s) together it was clear that the work of imparting educa tion continued by educational institutions like the University of Delhi and the college run by it was not an industry within the meaning of section 2 (j). It would be unreasonable to hold that educational institutions were employers within the meaning of section 2 (g), or that the work of teaching carried on by them was an industry under section 2 (j), because essentially the creation of a well-educated, healthy young generation imbued with a rational progressive outlook on life which was the sole aim of education, could not at all be compared or assimilated with what might be described as' an industrial process ; Employees Union, damia Karachi v. Registrar, Trade Unions, Sind and 2 others (P.L.J. 1981 Karachi 397), in this decision the scope of secton 2 of the Industrial Relations Ordinance, 1969 as to 'industry' with refe rence to the University and the Board of Education was considered and it w'as held that the nature and character of duties and functions performed by the University or Board could not be termed as those of an industry ; Ghnlam Ssnrar and another v. Principal Government Teachers Training College Khairpnr (1982 P L C 771), in ibis case it was held that the Govern ment Tea -hers Tracning College Khairpur was an educational institution and was meant purely for the training of Government teachers. That could not be deemed to be an industrial commercial establishment for the purpose of the Standing Order. The employees of the institution were not entitled to file a grievance petition against the termination of their services, under section 25A of the Industrial Relations Ordinance, 1969. 8. The (earned counsel for respondent No. 2 has supported the order of respondent No. 1 by maintaining that the petitioner is an industrial concern since its products sold in exhibition fetch money to the institution and the position of respondent No. 2 is that of a worker within it. The griev nce petition could be brought under section 22A of the Industrial Relations Ordinance, 19(>9 and was rightly accepted by respondent No. 1. The learned counsel on legal aspect as to the position of the petitioner and in support of the case of respondent No. 2 has relied upon A. F. Ferguson & Co. v. 5th Sind Labour Court Karachi and another (1974 P.L.C. 98)], in this case it was held that the definition of 'industry under section 2 of . the Industrial Relations Ordinance, 1969, was wide enough to include professions and large professional establishments, for example a irm of Chartered Accountants, lawyers and the like, so the Labour Court had the jurisdiction to entertain the demands of the workers through their unions in such establishment.
9. From the presentation of the case the admitted position is that the school is being run by admitting the female students against fees to acquire technical education appertaining to sewing, cutting and needling and on the success of the students in imbibing there with the education they are issued witn the diplomas. There are two teachers who impart technical education ami a female servant who is oiherwise an attendant in the school. The scnooi is maintained and run by a Managing Committee Respondent ino. 2 has been acting as a teacher in the school since 1964. Since the onus was upon respondent No. 2 so as fc> prove that Attock Industrial scnooi (petitioner) was an industrial concern and her position there was ibm of a worker, as such her application under section 25A of the Indus trial delations Ordinance, i969 was competent and the Labour Court had the jurisdiction to decide the same, therefore, for this the statement of respondent No. 2 before the Labour Court is to be taken into consideranon. 10 snow this educational institution as an 'industry' she stated that vocational work was done in the school and the things which were made in the school were put in the annual exhibitions and were sold that way. i de income of those things used to be deposited in the school. There were registers of attendance, pay and of exhibitions in the school. «W in £ 'J 16 West Pak « stan Industrial and Commercial r (St '? din « Order
Ordinance, I%8 as to its application within t reference is to be had to clause (a) of sub section. (4) of section 1, which reads : "It applies to ; (o) Every industrial establishment or commercial establishment wherein twenty or more workmen are employed directly or through any other person whether on behalf of himself or any other person or was so employed on any day during the preceding twelve months ;" However the Government may by notification in the official gazette from time to time specify in this behalf such class or classes of other industrial and commecial establishment. 11. The petitioner institution does not keep the requiste number of Ithe employees so as to attract the provisions of this Ordinance, therefore. ten employee in the institution is not in the status of a worker nor there is |any notification issued by the Government that to this institute the application of the said Ordinance is to be extended. Section 2 clause (xiv) ?J . I; , ldus ! r . ia ' Relations Ordinance, 1969, gives the definition of industry as industry means any business, trade, manufacture, calling, service, employment or occupation." Viewed in the light of the above quoted decision ie. KG -Old; Principal, Christian Technical Training Centre, GnjraBwala Presiding Officer, Punjab Labour Court, Northern Zone and 6 others (P. L. D 1976 Lahore 1097) vis-a-vis the definition of'industry' as given in the above said Ordinance, the petitioner's school cannot by any ratio emotion be regarded as an industry as defined in the Industrial 1 "'j-!!'?^'. 1969 " 0 " 10 attrac t»ts application. The petitioner decidedly is an educational school being run on a small scale for imparting technical education so as to train the students to equip them for their future struggle with the education of arts they are trained about The articles produced by the school are exposed as alleged by respondent no i at annual exhibitions and are sold. Such a ca&ual income cannot maxe tne petitioner's school as an industry within the definition of the aforesaid Ordinance. It can be regarded as an incidence of vocational icaucation and not the basic assertion of it. It has been admitted by espondent No. 2 in her statement that this income is kept in the school, so such an income if the school keeps, the presumption is that it is spent on the development and progress of the school, not that school is being run so as to secure earnings. By position on the facts and circumstances respondent No. 2's relation was that of master and servant where-underj the service could be terminated by«one month's notice or one month's payL in lieu thereof which was in fact done by the petitioner. If at all aggrievedr' her remedy at that time was to file a suit for damages in the civil} court. 12. The conclusion is that the' West Pakistan Industrial and Commer cial Employment (Standing Order) Ordinance, 1968 and the Industria Relations Ordinance, 1969 being not applicable, the petition moved by respondent No. 2 in the Labour Court under section 25A of the Industria F elations Ordinance as a grievance petition was not competent and the Labour Court had no jurisdiction to adjudicate upon. It was rightly observed so by the Junior Labour Court, therefore, this writ petition is accepted and the order dated 23 8-1975 passed by respondent No. 1 hereby declared as without lawful authority and of no legal effect, without any order as to costs. (TQM) Petition accepted.
PLJ 1985 Lahore 313 PLJ 1985 Lahore 313 Present: zia mahmood mirza, J Ch. SAMIULLAH-Petitioner versus MUHAMMAD ASHIQ KHAN ABDALI and 2 Others-Respondents Writ Petition No. 3114 of 1984, decided on 3-6-1985. (i) Urban Rent Restriction Ordinance, 1959 (W. P. Ord VI of 1959)
Ss. 13 (3) (a) & 15 read with Provisional Constitution Order, 1981 (CMLA's 1 of 1981) Art. 9 Eviction Personal need - Concurrent findings regardingInterference withConcurrent findings of fact recorded by two courts below after due consideration of material on recordHeld : Such findings not to be open to question in constitutional jurisdiction of High CourtHeld further : Finding on issue of bona fide need even if erroneous, same not to render impugned judgment without lawful authority. [P. 319JE&F - PLJ 1982 Lah. 231 & PLD 1983 SC 451 ref. (ii) Urban Renf Restriction Ordinance, 1959 (W. P. Ord VI of 1959) Ss. 13 (3) (a) & 15 read with Provisional Constitution Order, 19ol (CMLA's 1 of-1981)Art. 9EvictionPersonal needGround of --Landlord Bona fide ofShop in dispute needed by landlord and his son for their personal use in good faithLandlord's son doing business of cloth in rented khoktta Held : Need of landlord's son duly set up in petition for ejectment to be clearly bona fide Held further : Personal need of landlord even if excluded, that of his son to stand established on record. [P. 318]£> 1982CLC2134r«/. (Hi) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959) -- S. 13 read with Civil Procedure Code, 1908 (V of 1908) O. XXIII R. 1 Eviction Application for -Maintainability of Permission to file fresh application granted to original landlord on payment of Rs. SO/- as costs Such fresh application brought by landlord event ually standing dismissed Subsequent petition instituted independently by person deriving title from landlord Held: Maintainability of such petition in no manner to be affected by non-payment of costs in question. [P. 318]C (it) Urban Rent Restriction Ordinance, 1959 (W. P, Ord. VI of 1959)- -S. 14 Final order in previous application Re-opening of Res judicata Rule of Applicability of Plea of personal use not adjudicated on merits in previous proceedings Fresh cause of action also accruing Held : Subsequent petition not to be hit by bar of general res judicata or that contained in S. 14 of Ordinance [P.318]5 PLJ 1982 SC 405 re/. (v) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959) Ss. 14 & 13 (3) (a) Final order in previous application Re-opening of Res judicata Rule of Applicability Plea of personal need not adjudilated on merits in former proceedings initiated by previous landlord Held : Order of Rent Controller in such proceedings not to operate as res judicata qua need subsequently set up in ejectment petition. [P. 3l8]X (Yi) Provisional Constitution Order, 1981 (CMLA's 1 of 1981) - Art. 9 See : Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)-Ss, 13 (3) (a) & 15. [Pp. 318 & 3l9]0, E &. F Sh Zia Ullah, Advocate for Petitioner. Mr. Abdul Hayee Mansoor Ahmad, Advocate for Respondent No. 1. Dates of hearing : 3, 10 & 11-2 ; 10, 11, 16 & 17-3 & 7 & 10-4-1985. judgment This petition under Article 9 of the Provisional Constitution Order has been filed by the tenant to call in question orders of the Rent Con troller dated 19-2-84 and of the learned Additional District Judge dated 21-4-84 directing ejectment of the petitioner from the shop in dispute. 2. Facts necessary for the disposal of this petition, briefly stated, are that shop bearing No. 8-52-R-7, Nisbet Road, Lahore hereinafter called the shop in dispute was taken on rent by the petitioner from Muhammad Ayub Khan, brother of respondent No. 1 in August, 1965 on a monthly rent of Rs. 300/-. Petitioner is also said to have paid Rs, 10.000/- to Muhammad Ayub Khan as advance rent through a cross cheque. Petitioner entered into possession of the shop in dispute in October, 1965. Dispute between the parties arose in respect of certain repairs with the result that the petitioner filed an application under section 12 of the Rent Restriction Ordinance in the year 1967 for a direction to the landlord to 6. In order to establish his case respondent No. 1 examined his son Alim Khan as P. W. 1, produced two more witnesses and himself appeared as P. W. 4. Petitioner, on the other hand, produced Qamar Din R. W. 1, Mohammad Idrees R. W. 2 and himself appeared as R. W. 3. He also produced copy of the judgment (Ex. R 1) dated 14-4-81 passed by Mr. Mumtaz Hussain Malik Rent Controller. 7. Learned Rent Controller after considering the evidence on the record found issue No. 1 relating to the bona fide personal neeo 1 in favour of respondent No. 1. Issue nq. 2 was held to have been abandoned by respondent No. 1. Issues Nos. 3, 4, 5 and 6 were taken up together an decided against the petitioner. It was held by the Rent Controller that the judgment (Ex. R. 1) did not bar the present ejectment petition for the reason that the question of personal need of respondent No. 1 and his son Aleem Khan was not decided on merits. On the issue of personal need, Rent Controller found as follows : "From the evidence on record it is established that the petitioner is a retired Govt Servant and his son Aleem Khan is carrying on a business of cloth like hawkers and they are in actual need of the shop in dispute. The petitioner owns no other shop except the shop in dispute while the respondent has got an other shop in the same vicinity." With the aforementioned findings, learned Rent Controller accepted the ejectment petition by his order dated 19-2-84 and directed the peti tioner to hand over vacant possession of the shop in dispute to respondent No. 1 within one month. 8. Petitioner challenged the order of the Rent Controller in an appeal which was dismissed by the learned Addl. District Judge by judgment dated 21-4-84 upholding the findings of Rent Controller on all issues. 9. I have heard the learned counsel for the parties at considerable length and have also perused the record with their assistance. 10. Learned counsel for the petitioner raised the following points to assail the validity of the impugned judgment : (/) that in view of the order of Mr. Mumtaz Hussain Malik, Rent Contro ler dated 14-4 81 (Ex. R. 1), dismissing the earlier eject ment petition brought on the ground, inter-alia, of personal need, present ejectment petition was not maintainable by virtue of ths bar contained in section 14 of the Rent Restriction Ordinance and on the general principles of resjudicata ; (ii) that Muhammad Ayub Khan, predecessor-in-interest of respondent No. 1 was allowed to file a fresh petition on payment of Rs. 50/-as costs which have not been paid so far. Consequently present ejectment petition was not maintainable ; (Hi) that the need set up by respondent No. 1 was not bona fide and in any case it has not been established on evidence of the record ; and (/v) that Rent Controller was under obligation to pass final order rearding oayment.of rent in terms of sub-section (8) of section 13 of the Rent Restriction Ordinance which he failed to pas), need in the amended petition which was filed without the permission of the, Court. Learned counsel for the petitioner, however, submitted that the iisue regarding personal need of respondent No. 1 was decided against him and he referred in this connection to the afore-quoted observation of the Rent Controller that the petitioner has failed to make out a case for his own personal need This observation, to my mind, is inconsequential in view of the finding of the Rent Controller that respondent No, 1 filed the amended petition without any permission. Be that as it may, the fact remains that the plea of personal need of Aleem Khan, as held above, was. not adjudicated on merits in the order Ex R. I with the result that the order in question cannot operate as res judicata qua his need as set up in the present ejectment petition. Contention of the learned counsel may be examined from yet another angle. It has been held by the learned Addl. District Judge that fresh cause ofaction bad accrued to Aleem Khan. He based this finding on the evidence that Aleem Khan had been earning his livelihood by driving an Ambulance car. He had met with an accident whereafter he was unable to drive and that he was doirg a business of cloth in a rented -khokha' This finding of the learned Addl. District Judge is based on evidence and is, therefore, unexceptionable. Fresh cause of action having accrued at least in the case of Aleem Khan present ejectment petition would not be hit by the bar of general res judicata or that contained in section (4 of the Rent Restriction Ordinance. Reference in this behalf may be made to Sh. Maul Bikhsh «td another v Fazal Din and another (PLJ 1982 S. C. 405), wherein it was held that where a new cause of action arose "the bar of general resjudicata or for that matter, one in the provisions contained in section 14 of the Ordinance, was not attracted." Thus viewed from whatever angle, present ejectment petition was clearly maintainable at least so far as personal need of Aleem Khan was concerned. Contention of the learned counsel for the petitioner in this behalf is, therefore repelled. 12. As regards the second submission of the learned counsel for the petitioner based on non-payment of costs, it may be observed that permis sion to file a fresh ejectment petition was sought by and granted to Muhammad Ayub Khan, the original landlord. It was, therefore, his liability to pay the costs. He had in fact brought a fresh ejectment petition. Petitioner could or should have agitated this question in that kjectment petition which in any case was eventually dismissed. Respondent c |No. I thereafter instituted the present ejectment petition independently. [Us maintainability would not, therefore, in any manner be affected by {non-payment of the costs in question. 12. As regards the third contention of the learned counsel for the petitioner that bona-fide need of respondent No. 1 has not been established on evidence, it may be pointed out that it has been concurrently found by the two learned Courts that respondent No. 1 and his son Aleem Khan need the shop in dispute for their personal use in good faith. This finding is supported by the evidence on record which has been duly appraised by the two Courts. It is in evidence that Aleem Khan used to earn his living by driving an Ambulance car but he met an accident whereafter he is doing a business of cloth in a rented 'khokha'. Thus even if the personal need of respondent No. 1 is excluded, need of his son Aleem Khan which was duly set up in the petition for ejectment stands established on record. Need of Aleem Khan, on the facts and circumstances brought on the record was clearly bonafide. In MAfvbwMMd Mazaffar AH y. Mnhtmmai Abdai alam" (1982 CLC 2134), landlord s son was carrying on business of glasses and opticals repairs on foot path and it was held that "the require ment cannot be said to be otherwise than bonafide." Even otherwise, issue of the requirement of the premises in dispute for personal use is one of fact which stands concluded by concurrent findings recorded by the learned Rent Controller and the learned Addl. District Judge after due consideration of the meterial on the record. That being so, the finding is not open to question in constitutional jurisdiction of this Court. If any authority is needed for this proposition, reference may be made to "Abdul Ghani v. Zahida Begum (PLJ i982 Lahore 231). However, even if the finding of the learned Courts on the issue of bonafide need be erroneous as was sought to be canvassed by the learned counsel tor the petitioner that would not render the impugned judgment without lawful authority. It was held in "Faqir Muhammad and others v. Mohammad Ismail and others" (PLD 1983 s>C 451) '-the question of jurisdic tion of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the junsdiction to decide a particular matter there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one, at which the High Court would have arrived, does not render the decision, without jurisdiction." 14. Last point urged by the learned counsel for the petitioner with reference to the provisions of subsection (8) of section 13 of the Rent Restriction Ordinance has also no substance. Learned counsel could not cite any authority in support of his contention that the impugned order of ejectment would be rendered illegal y not passing a final order regarding adjustment of rent paid by the petitioner. To my mind, omission to pass an order in terms of subsection (8) of section 13 does not adversely affect the validity of the impugned order. As shown above, none of the contentions raised by the learned counsel for the petitioner has any merit. This petition, therefore, fails and the same is hereby dismissed but taere shall be no order as to costs in the factff and circumstances of the case. (TQM) Petition dismissed
PLJ 1985 Lahore 319 PLJ 1985 Lahore 319 Present; zia mahmood mirza, J MUHAMMAD ABDULLAH DARPetitioner versus MUNICIPAL CORPORATION Faisalabad through Mayor Municipal Corporation, Faisalabad and AnotherRespondents Writ Petition No. 5149 of 1984, heard on 10-3-1985. (i) Punjab Local Councils Servants (Efficiency & Discipline) Rules, 1981
R. 13 read twith Provisional Constitution Order, 1981 (CMLA's 1 ol 1981)Art. 9Local council servantsDismissal from Service ofShow-cause noticeRequirement ofMunicipal Corporation depriving petitioner of show causenoticemerely because of its having not received copy of rder f Summary Military CourtHeld: Non-receipt of copy of order of Military Court to constitute no valid justification to deprive petitioner of valuable opportunity of j show cause against penalty of dismissal Held farther : Competent authority, in circumstances, to have no lawful or valid basis or proceeding under rule 13(2) of Efficiency & Discipline Rules so as to deny petitioner of opportunity to show cause. [P. 32l]A f (il) Punjab Local Cornells Servants (Efficiency & Discipline) Roles, 1981
R.I 3 read with Provisional Constitutions Order, 1981 (CMLA's 1 of 1981)Art. 9- Local Council employeeShow cause notice to Requirement cf Held : Show-cause notice contemplated in subrule (1) of rule 13 granting very valuable opportunity to affected employees such notice t e taken away only in case of it being not reasonably practicable to give such opportunity Show-cause notice admittedly not given to the petitioner in case- Held : impugned order of dismissal from service to be declared to B e with-out lawful authority,[. P. 322] B & C. --
(Mi) Provisional Constitution Order, 1981 (CMLA's 1 of 1981)
Art. 9$ee: Punjab Local Councils Servants (Efficiency' & Discipline Rules, 1981R. 13. [Pp. 21 & 22] A, B & C Ch. Muhammad Arif, Advocate with Mr. Ijaz Feroze, Advocate for Petitioner. Mr. Rashid Aziz, Advocate-General for Respondents. Date of hearing: 10-3-1985. judgment Facts giving rise to this constitutional petition, briefly stated, are that the petitioner was an employee of the Municipal Corporation, Faisalabad . He, atthe. relevant time, was posted as Octroi Superintendent when on 14-10-1982, a criminal case registered against him under -M. L. O. 17/77 on the allegations that while acting as Office Superintendent, he tampered with -^ the office record of the Municipal Corporation, Faitalabad, and that he was guilty of inefficiency on account of misplacing certain tender docu ments. Petitioner was tried by the Summary Military Court , Baisalabad and was convicted and sentenced to six months R. I. and a fine of Rs. I.OO.OOO/- which was subsequently reduced to three months R. I. and a fine of Rs.50.000/- by the D. M. L. A. The petitioner served out the sentence and also paid theJne. After the petitioner had served out his sentence, he applied to the respondent No. 1 for permission to join the service when he was upplied a copy of the order dated 11-4-1983 which was to the effect that he had been dismissed from service with effect from the date of his onviction i.e. 30-10-1982. Petitioner challenged the order of his dismissal in an appeal which was dismissed by the Director, Local overnment nd Rural Development, Faisalabad Division, vide order dated 21-4-1984. Petitioner challenged the order of his dismissal through this onstitutional etition. Learned counsel for the petitioner contends that the petitioner was entitled to a show-cause notice under rule 13(11 of the Punjub Local Council Servants (Efficiency and Discipline) Rules 1981, which notice was not given to him before ordering his dismissal. Rule J3(!) is as follows 6. It is next contended by the learned Advocate-General that the factum of conviction having not been denied by the petitioner, it was holly Itunnecessary to give him show-cause notice. This argument is against the plain J| anguage of rule 13(1) which is attracted only in a case f ocal council w servant who has been convicted of an offence involving moral turpitude and is sentenced to imprisonment or fine. This sub-rule then rovides that in such a case, the local council servant may be 'dismissed or given any » other penalty mentioned therein after he is given a show-cause notice. Notice provided in sub-rule (1), to my mind, is intended to enable the concerned local council servant to show to the authority that on the facts and circumstances of his case, no penalty at all is warranted or that he may be dealt with leniently and given lesser penalty instead of the one sought to be imposed on him. For instance, if the penalty sought to be inflicted is one of dismissal, he might satisfy the authority that reduction in rank would meet the ends of justice in his case. Thus the show cause notice contemplated in sub-rule (1) grants a very valuable opportunity to the affected employee which must be -afforded to him and which, as noticed i Blabove, can only be taken away under sub-rule (2) provided the authority is satisfied that it is not reasonably practicable to give such an opportunity. Looked at from this angle, petitioner was clearly entitled to the show-cause notice as provided in rule 13(1) which admittedly was not given to him. 7. Having canvassed his submissions afore-referred, the learned Advocate-General at this stage has also quite frankly conceded that in the facts and circumstances of this case, petitioner should have been given an opportunity to show cause but he has requested that the respondent be permitted to proceed against the petitioner afresh after giving him showcause notice. I 8. In view of what has beea state! above, the impugned order of J petitioner's dismissal from service is declared to be without lawful iuthority and of no legal effsct. Rasultantly, this pstttion is allowed but (there shall be no order as to costs in the circumstances of the ase. shall, however, be open to the competent authority, if it so wishes, t proceed against the petitioner afresh in accordance with law. (TQM) Petition allowe d
PLJ 1985 Lahore 322 PLJ 1985 Lahore 322 ; [ Rawalpindi Bench] Present : qurban sadiq ikram, J BANARAS and 2 OthersPetitioners versus GHULAM MUHAMMAD and 5 OthersRespondents Writ Petition No. 44 of 1985, decided on 30-1-1985. (i) Punjab Pre-emption Act, 1913 (I of 1913V-
S. 27 read with Registration Act, 1908 (XVI of l908)r-S. 58 (l)(c) Market value Determination of Amount actually paid Relevancy ofEntire sale price in both registered sale deeds paid by vendees to vendors in presence of Sub-RegistrarSuch payment also recorded in endorsement on sale deedsHeld : Presumption of correctness regarding such amount having actually been paid to be attracted in caseHeld further : Particular amount having actually been paid before Sub-Registrar, question of determination of market value not to arise (in circumstances). [Pp. 324 & 325]/4 & B (li) Writ Jurisdiction Tribunal of exclusive jurisdictionDecision byInterference with Impugned order of Member, Board of Revenue found to be per fectly legal and with jurisdictionHeld : No interfere in exercise of constitutional jurisdiction to be made merely because of there being some possibility of arriving at another conclusion. [P. 32S]C PLJ 1974 SC 60 & PLJ 1981 SC 660 reL (lit) Registration Act, 1908 (XVI of 1908)
S 38 (1) (c)See : Punjab Pre-emption Act, 1913 (I of 1913) S. 27. [Pp. 324 & 325]^ & B (lit) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)
S, 2 (f)Rented landDefinition ofPlot of land obtained for setting up factory for purpose of earning profit therefromPetitioner also greeing to remove machinery and structure and deliver posses sion thereof as plot on termination of leaseHeld : Such plot to squarely fall within ambit of ented land as envisaged by S. 2 (f) of Ordinance. [P. 338}0 . PLJ 1976 SC 522 & PLD 1970 Lab. 455 distiguished. (hr) Urban Rent Restriction Ordinance, 1959 (W. P. Old. VI of 1959)-
S. 13Rented landEviction fromrRent ControllerJurisdic tion ofOuster ofHeld : Jurisdiction of Rent Controller to be ousted and property o be taken out of purview of Ordinance on basis of its being factory provided industrial unit or factory be shown to have been leased out as such or ame be (situated) out of limits of urban areaProperty leased falling within definition of various properties mentioned in Rent Restriction Ordinance, 959Held : Sub sequent utilisation of such property for such other purpose not to operate so as to take property out of purview of Ordinance. [P. 339]£ (f) Jurisdiction
Objection toFailure to raiseEffect ofObjection to jurisdiction not taken at earliest opportunity before Tribunai/Court concerned- Held : Party not objecting^) such usurpation, of jurisdiction to be disentitled from objecting to jurisdiction of Tribunal/Court in con stitutional proceedingsSuch rule, however, being not absolute one. objection to be allowed to be raised when (a) defect of jurisdic tion be apparent on face of record or (b) not known to petitioner, (c) failure to raise it when not so material (d) court not properly con stituted or (e) where such objection, even if raised not to be given effect to by concerned Tribunal/Court. [Pp. 339 & 340]F & G 1970 SCMR 375 ; 1969 SCMR 96 (2) & PLD 1964 SC 829 ref. (ri) Words & Phrases "Business"Ingredients of. [P. 338]B Oil) Urban Rent Restriction Ordinance, 1959 (W." P. Ord. VI of 199)
Ss. 13 & ISSee: Constitution of Pakistan , 1973Art. 199. [P. 340]ff Mian Nisar Ahmad, Advocate for Petitioner. Dr. Khalid Ranjha, Advocate for Respondents 1 & 2. Nemo for others. Dates of bearing : 9 & 11-3-1985. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against order dated 7-10-1978 passed by the Rent ontroller, Faisalabad and judgment dated 23-12-1980 delivered by the Additional District Judge, Faisalabad. 2. The facts necessary for the purposes of this petition, briefly stated, are that the petitioner and respondents Nos. 4 to 7 obtained on lease land measuring 6 kanals and 8 marlas (34' x 200') comprising Kila No. 16/1/1, square No. 4/67, situate in Chak No. 224, Abadi Haji Mehr Hakam Din, Faisalabad for Nazir Ahmad, the predecessor in-interest of respondents Nos. 1 to 3. The lease was for a period of 15 years commencing 1-5-1955 and ending 30-4-1970. The rent fixed was R s. 1500 per annum. According to the averments in the lease deed the land described above was obtained by the petitioner for establishing a Calendering and Finishing Mills. It is the admitted position that the building on the plot in dispute was constructed by the lessees and the machinery was also installed therein by them. After the demise of Nazir Ahmad afore-mentioned the lessees started making payment of the rent/lease money to the successors-in-interest, namely respondents Nos. 1 to 3. The said respondents, however, on 6-6-1975 filed an ejectment petition before the Rent Controller, Faisalabad against the petitioner and respon dents Nos. 4 to 7 seeking their eviction on a number of grounds. The ejectment petition was resisted by the petitioner and on the divergent pleadings of the parties 10 issues, including that of relief, were framed by the Rent Controller. The learned Rent Controller, by his order dated 7-10-1978, accepted the ejectment petition of respondents Nos. 1 to 3 and ordered eviction of the petitioner etc. from the land in dispute. He, however, gave them three months time for removal of malba and machinery. Feeling dissatisfied the petitioner preferred an appeal to the learned Additional District Judge, Faisalabad against the order of the learned Rent Controller. The learned Additional District Judge, Faisalabad , by his judgment dated 23-12-1980 dismissed the appeal of the petitioner. Hence the present constitutional petition. 3. The learned counsel for the petitioner only contended that the land in dispute having been admittedly leased to the petitioner for the purpose of establishing a factory would not fall within the purview of Section 2 (f) of the W. P. Urban Rent Restriction Ordinance (VI of 1959), that the learned Rent Controller had .no jurisdiction to entertain the ejectment petition and therefore his order as also judgment of the learned Additional District Judge, Faisalabad are without lawful authority. He teferred to the various clauses of the lease-deed to show that the land had in fact been let out for setting up a factory. In support of his contention that such a parcel of land would not fall within the purview of Section 2 (f) ibid the learned counsel relied on "Messrs. R ehman, Cotton Factory v. Messrs. Nicbimen Co. Ltd, Karachi reported as P.L D. 1970 Lahore 455 which decision was upheld by the Supreme Court of Pakistan vide "Messrs. Rebman Cotton Factory v. Messrs. Nicbimen Co. Ltd. (formerly Messrs. Japan Cotton and General Trading Co. Ltd.) Karachi " reported as P. L. J. 1976 Supreme Court 522. tea-manufacturers had come to a stop. The word "business" is not defined xhaustively in the Income-tax Act, but it has been held both by this Court and the Judicial Committee to denote an activi ty with the object of earning profit. o ay that a business is being carried on, means no more than that profit is to be earned by a pro cess of production. The business of a tea-grower and anufacturer is not merely to grow tea plants but to collect tea leaves and render them fit for sale. Daring the year in question, the appellants were tending heir tea garden to preserve the plants, but this activity cannot be desribed as a continuation of the business, which had come to an end for the time being. t would have hardly made any standstill." (underlining above is mie) more than trade. would plot of "Business" involves three elements viz. (i) occupation of time, attention and labour ; («) incurring of liabilities to other persons and (in) the purpose of a livelihood or profit. From the above it of necessity follows that the phra« "busioess (inter alia include the setting up of a factory/industrial unit on any C land taken on rent with the purpose of earning pr W hl P f w [that a business is being carried on to earn profit by a process 01 6. The lease-deed which has been placed on the record of below as Exh. P. 1 clearly shows that the parcel of land in <i«nu 'obtained by the petitioner and others from the pred^""'- contesting respondents as a plot of land and tha tioner raised construction on the said plot and also ii.. therein for conducting the business of Calendering and obviously for the purpose of earning profit. This is aiso _s afore-mentioned lease-deed that in case of termination ot th tioner shall remove his machinery and structure and para of as a plot. That being so it cannot be said the lease of a factory, and thus there was no .,«...----- ^ - - Controller to entertain the ejectment petition for eviction ot tne from the premises in dispute. Applying the three criteria (VI of 1959). Here in italics. xample where the defect of jurisdiction is apparent on the face of the ecord or was not known to the petitioner or where the failure to raise uch an objection is not so material or where the Court whose jurisdiction s being objected to was not properly constituted or the view of the Tribunal on such an objection was well known having been expressed in a arge number of cases so that even if that objection had been raised
efore it the Tribunal would hot have given effect to the same. The objection to the jurisdiction of the Rent'Controller now raised by the petitioner not only does not fall within any exception but also fully attracts the application of the rule mentioned above. 1 have therefore no lesitation in holding that the petitioner having not raised the plea of ouster of jurisdiction of the Rent Controller before the two forums below viz. the Rent Controller and the Additional District Judge, and having submitted to their jurisdiction and participated in the proceedings before them without any objection cannot now be allowed to turn around and object to it before this Court in its constitutional jurisdiction when the decisions of the Courts below have gone against him. 12. In view of the foregoing discussion 1 find no merit in this petition which is accordingly dismissed with costs. 13. The learned counsel for the petitioner has, at this stage, made a request that the machinery of the petitioner has to be removed and therefore he be given time for handing over the possession. 14. This request appears to be genuine and accordingly I allow one one month's time to the petitioner to remove the machinery etc. and hand over the vacant possession of the plot to the respondents in accordance with the terms of the lease-deed. In case of failure of the petitioner to deliver the possession within the above mentioned period of one month the contesting respondents may obtain possession through the process of law. (TQM) Petition dismissed.
PLJ 1985 Lahore 340 PLJ 1985 Lahore 340 Present : ch. ammd khan, J MS!, RASUL BIBI and Another -Petitioners versus MANZOOR AHMAD and 12 OthersRespondents Civil Revision No. 797-D of 1985, heard on 20-4-195. (i) Specific Relief Act. 1877 (I of 1877)
S. 42 read with Limitation Act, 1908 (IX of 1908)S. 3 & Art. 120 Declaration Suit for Limitation Bar. ofPlea of Plaintiff found to be in possession of at least some of the suit landHeld : Mere fact of entry in mutation or revenue records having been made adverse to plaintiff not to render suit time-barred. [P 343]^ 217 PLR 1914 ; AIR 1936 Lab. 37 ; 54 1C 317 ; PLD 1968 Pesh. 148 ; pLD 1970 Lah. 614 &.PLD 1973 Lah. 495 ref, (ii) Specific Relief Act, 1877 (1 of 1877) -S. 42Co-sharersSuit for declaration bySuit for declaration filed by co-sharers in suit landOuster of such co-sharers not .even pleaded by defendantsHeld : Possession held by any of-co sharers being on behalf of others also, fonn of suit not to be defective. [P. 343]fl AIR 1934 Lab. 456 ; PLD 1970 Pesh. 150 & AIR 1917 Lah. 73 ref. Rana Abdul Hamted Khan, Advocate for Petitioner. Date of hearing : 20-4-1985? order The respondent Manzoor Ahmad, a son of Mst. Sakiaa Bibi, a pre deceased daughter of the propositus Allah Din, was not granted his share bf the inheritance, due to him under section 4 of the Muslim Family Laws Ordinance 1961 and two mutations relating to the inheritance of Allah Din having beeo sanctioned in- the names of his two surviving daughters, the present petitioners, in the years 1969 respectively in tehsils Gujrat and Phalia where the deceased had left landed property, he filed, a suit for declaration and permanent injunction on 10-9-199. The suit was con tested, among others, on the pleas that it was not maintainable in that form and was also barred by time. These pleas also were set down in issue Nos. 5 and 8 respectively. Learned trial Judge decided under issue No. 5 that form of suit was correct in so far as it was not hit by the proviso to section 42 of the Specific Relief Act because, while appearing on D.W. 1, Mst. Rasool Bibi has admitted him to be in possession of some of the land in suit. However, under issue No. 8, he held his suit to the time-barred under Article 120 of the Limitation Act and consequently dismissed the same. In the appeal filed there against, a learned Additional District Judge reversed the trial Court's finding on issue No. 8 and holding his suit to be within time, for the reason that he is in possession of some of the suit land, decreed it on 18-3-1985. Two principal defendants have now come up to this Court .in revision. 2. Learned counsel argues that since the suit land is situated in two different tehsils and whereas the respondent has been held, to "be in possess ion, at best, of some of the land situated in only the village where he himself resides, therefore, he cannot be in possession of the land situated in the other village and, thus, his suit for declaratioa brought 10 to 15 years after the attestation of the mutations of inheritance was liable to be dismissed as time-barred uner Article 120 of the Limitation Act but it has been wrongly decreed in absence even of a prayer made for possession of the land. He, however, does not dispute the relationship of the plaintiff who is a nephew (sister's son) of the two principal defendants and .so has also been found concurrently by the two -Courts below. Contentions of the learned counsel are simply misconceived and are liable to be repelled for more than one reason. Firstly, the mere fact of the entry in the! mutation or revenue records having been made adverse to the plaintiff |a wb>o has been found to be in possession of at least some of the suit land,} cannot render his suit time-barred. In Muhammad Umsr v. Nawab Din and others (217 P.LR. 1914), where it was found that some of the land in dispute was in possession of the plaintiff and the otner in . possession of the defendants and some tenants attorned to the plaintiff and some to. the respondent, it was held, by following twq earlier cases, that a suit for declaration to the effect that the mutation of the land effected in favour of the defendant shall be null and void as against the plaintiff, was main tainable. In Ghulam Muhammad Khan and others v. Samundar Khan and others (A.I.R. 1936 Lahore 37-D.B.), it was held : "A suit for declaration in respect of an entry made in record of rights filed under section 42 of the Specific Relief Act, read with section 45 of the Punjab Land Revenue Act, 1887, is governed by Article 120 of the Limitation Act, the cause of action in all such cases would accrue when the plaintiff feels aggrieved and not from date of entry." In the above case, following the case of Bhagwan Bakhsb Singh v. Saot farshad (45 1.C.317), it was further held: "Where a person continues in possession of proprietary rights inspite of an adverse entry appearing in the revenue papers, no question of limitation arise." Again, in Gul Khan v. Said Hassan Shah and others (P.L D. 1968 Peshawar 148> it was held : "As the revenue records are merely evidence of title and do not create or extinguish the same, it is obviously not necessary for the plaintiffs to first take proceedings for the setting aside of those entries in order to obtain a declaration of their title or .possession of the property." Then, in Mohammad Iqbal v. S.A.M Khan, Member, Board of Revenue, West Pakistan, Lahore and 3 others (P L.D. 1970 Lahore 614), a Division Bench, alter review of a number of cases, held : "An entry by virtue of the mutation is, therefore, not the basis of title. The person in whose favour such an entry is made cannot take advantage of the same to claim a title against any person. A person adversely affected by such an entry can, notwithstanding the mutation, maintain that he is vested with the right and, have his right declared in a civil suit." This case was then followed by another Division Bench in Mst Kaoiz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab Lahore and 5 others (P.L.D. 1973 Lahore 495). Secondly, as mentioned already, the plaintiff-respondent is the son of a predeceased daughther of the propositus and had inherited under section 4 of the Muslim Family Laws Ordinance, VIII of 1961, alongwith his two daughters, the petitioners herein. As such, they are co-sharers in the land in suit. In Beli Ram and others v. Munshi and others (A. I. R. 1934 Lahore 456), it was held : "The possession of one cosharer must be deemed to be the posses sion of the other cosharers and it is for the cosnarer in possession, in order to defeat the title of the absentee cosharer or his descen dants, to prove that by some overt act he constituted bis possess ion into an adverse possesion to the other cosharers, an overt act of which such cosharer had knowledge." In Ssad Uliab Kbao and 6 others v. Mir Piayo Khan and 14 others (P.L.D. j?~ 170 Pesbawer 150) a Division Bench held as under : 9 "Claimants being cosharers and entitled to the privileges of cosharers, can claim to have been in posse'ssion of the property through the other co-sharer." ' Therein, it was also held that all heirs who are entitled to inherit the property according to Shariat, should be treated as entitled to claim as cosharers because it is a well khown propsition of law that the possession of one co-sharer enures for the benefit of other cosharers also, unless there is ouster. A Division Bench of this Court in Hakim ». Ms. Ghulam Jaonat and others (A.I.R. 1917 Lahore 73) held : "For a suit for declaration, it is not necessary for the plaintiff to show that he is in exclusive possession of the property in suit. Joint possession is sufficient." This being the law, nothing really turns upon the fact that the ' respondent- ^ plaintiff may be in possession of some only of the lands in one village and not in those of the other. Since the petitioners ani respondent No. 1 are cosharers in the land in dispute and bis ouster has not even been pleaded by the petitioner, therefore, the possession held by either of them will be on behalf of the other as well. There can be no question of either the form of this suit being defective or its being otherwise barred by time. Contentions of the learned counsel are consequently repelled. There is no force in this Civil Revision is, therefore, dismissed in limine. Petition dismissed
PL J 1985 Lahore 351 PL J 1985 Lahore 351 Present: muhammad afzal loni] J ZAHOOR MAHMOOD FAROOQI-Petitioner versus PUNJAB PUBLIC SERVICE COMMISSION, Lahore-Respondent Writ Petition No. 3574 of 1983, decided on 6-3-1985. (i) Constitution of Pakistan , 1973
Art. 143-Federal and provincial lawsInconsistency between- M eld : In case of conflict between Federal and provincial laws, federal law to revail and provincial law to extent of repugnancy to be void. [P. 3<6}A (ii) Constitution of Pakistan , 1973-
Art 143Federal and provincial lawsInconsistency between Competently made federal law evincing intention to cover whole field already exis'ingHeld : Provincial legislature to loose authori ty to validly make any law in same fieldHeld farther : In case of two such competing laws enacting two divergent provisions, federal law to prevail. [P. 356J5 (iii) Constitution of Pakistan , 1973- Art. 143Federal and provincial lawInconsistency between- Existing law already occupying field on subject enumerated in con current listHeld Law made by provincial legislature in conflict with such existing law to be void. [P. 357JC (jt) Constitution of Pakistan , 1973
Art. 143Federal and provincial lawsInconsistency between- Concurrent list itself recognising provincial legislature's authority to legislate on ubjects enumerated thereinHeld : Mere possibility of overlapping of two enactments or incidental transgression of provin cial statute on federal tatute not to furnish valid basis for treating provincial statute as void. [P. 357]Z> (?) Constitution of Pakistan , 1973
Art. 143Federal and provincial lawsRepugnancy inHeld : Repugnancy to be said to exist when two provisions be (found to be) entirely irreconcilableSuch repugnancy also to be inferred when two provisions suffer irreconcilable conflict New law abridging some right conferred by existing law or directly or substantially interfering with such rightHeld : Repugnancy to be said to .exist (in case). [P. 357]£, F & G AIR 1939 FC 1 & 20 Com. W. L.JR. 148 ref. (ti) Constitution of Pakistan , 1973 - Art. 143Federal and provincial lawsInconsistency between HcM : Supremacy of federal legislation over provincial legislation qua concurrent list being there, subordinate legislation bearing character of "existing law" and competently made in exercise of authority given by federal enactment not to be overridden by provisions of pro vincial legislation muchless by rules making authority exercising power emanating from such legislation. [P. 358]/ (vii) Constitution of Pakistan , 1973
Art. 143Federal and provincial laws "Inconsistency between Effect of Held : Voidness of Provincial law on account of repug nancy to existing Federal law not to have effect of completely obliterating it from statute bookSuch (provincial) law, however, to be merely stripped off legal force and to be rendered ineffective as long as effect of paramount existing law causing voidness be not remov ed. [P. 358]£ (Tiii) Constitution of Pakistan , 1973-
Art. 268 read with Medical and Dental Council Ordinance, 1962 (XXXII of 19621S. 33 & Punjab Civil Servants Act, 1974 (VIII of 1974)S. 23-Existing lawsProtection ofRules in contravention ofValidity of Medical & Dental Council Ordinance, 1962 and Re gulations made under S. 33 thereof, (in force before commencing day of Constitution) declared as existing law under Art. 268Held : Such regulations to take precedence over Health Department (Medical & Dental Teaching Posts') Service Rules, 1979 (subsequently) framed under S. 23 of Punjab Civil Servants Act, 1974. [P. 357]fl (ix) Medical and Dental Council Ordinance, 1962 (XXXII of 1962)-
S. 33 read with Punjab Civil Servants Act, 1974 (VIII of 1974) S. 23Medical CouncilPower to make .regulationsMedical & Dental Council specifically granted power to prescribe minimum qualifications for recruitment of teachers for Medical and Dental institutionsHeld : General rule making power postulated under S. 23 of Punjab Civil Servants Act, 1974 not to be permitted to over ride S. 33 (2) of Ordinance. [P. 358]M (x) Interpretation of Statutes
General and special provisions Construction of Legislature directing its attention to particular subject and specifically making provuions on it in unambiguous formHeld : General provision not to be extended to cover same subject. [P. 358]L Mr, M, Aqil Mirza, Advocate for Petitioner. Mr. Najam-ta^Zaman, A. A. G,, for Respondent. Date of hearing : 8-12-1984. judgment Through an advertisement appearing in the daily Pakistan Times dated 20-3-83, Punjab Public Service Commission, invited applications, for 4 temporary, but likely to be made permanent posts of Assistant Professor Bio-Chemistry for Medical Colleges/attached Hospitals, in the Punjab Health Department. The petitioner applied for such a post but bis appli cation was rejected by the Punjab Public Service Commission for lack of qualification and an intimation in this behalf given to him under their letter dated 4-7-1983. He filed a representation before the Chairman of the Commission, but it was turned down on 4-8-1983 The Commission (/i) If no suitable candidate with the aforesaid qualifications is available, then- MBBS or equivalent medical qualification re cognized by the Council and five years teaching ex perience in the relevant subject as Demonstrator or equivalent position re cognized y the Council. X X X X X XX He argued that as per these rules, if a suitable medical graduate is not available, the candidate must be M. Sc., in the subject and further possessed of post graduate qualifications, set out in the Rules. He went on to con tend, that as the petitioner is not M Sc., in Bio Chemistry, which in case of non-availability of a medical graduate, is, the basis requirement for the post, he cannot be considered as an alternate candidate. In this behalf, the learned Assistant Advocate-General, further made a reference to the Advertisement in the Pakistan Times, dated 27-7-1980 (Annex: 'C') where by the Commission invited the applications. This advertisement is in consonance with the Punjab Healta Department, 1979 Rules and describes the qualifications as : "MBBS or equivalent medical qualification recognised by the Pak. Medical and D;ntal Council or M.Sc. in the subject (if no suitable medical graduate is available) and then following (post graduate quali fications) in order of preference : (i) D. Sc or Ph. D or M. Phil or F. C. P. S. (in Bio-Chemistry (or other equivalent qualification recognised by the council ; (11) If no suitable candidate with the aforesaid qualifications is avail able then (a) MBBS or equivalent medical qualification recognised by the council, and (b) Five years teaching experience in the relevant subject as Demonstrator or equivalent position recognised by the council." 7. There is an obvious conflict between ibe Regulations published by the Pakistan Medical and Dental Council, "and the rules promulgated by the unjab Government. Under the Regulations (Annex; 'E remarks, column) in case of non-availability of Medical Graduate the substitute need not be an M. c. in Bio-Chemistry but by virtue of rules, he must be pos sessed of such a qualification. 8. A question arises as to whether the two standing provisions can co-exist, if not which shall prevail. The answer to this question will necessitate the examination of the source of authority, under wnich the two provisions in pursuance of delegated legislative powers were made. As. already observed, the Regulations have been issued under Section 33 of the Ordinance, which lays down : "33 (1) The Council may, with the previous sanction of the Central Government, make Regulations generally to carry out the purposes of this Ordinance, and without prejudice to the generality of this power, such Regulations may provide for (a) x x x x x x (2) Notwithstanding anything contained in sub-section (1) the Council shall make Regulations which may provide for (a) (</) prescribing minimum qualifications and experience required of teachers for appointment in medical and dental institu tions ; Section 23 of the Punjab Civil Servants Act 1974 under which the Rules have been made reads as -under : "23 (l)The Governor, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. (2) x x xxx x 9. Article 268 of 1973 Constitution, ordains that ail existing laws, shall continue in force, so far as applicable and with necessary adorations un less altered, repealed or amended by appropriate legislature. Clause (7) of this Article, defines the existing laws and includes the Ordinances, Orders, Rules, Bye-laws, Regulations and any Notifications and other legal instruments, having the force of law, and in force in Pakistan, immediately before the coming in force of the Constitution, referred to in the Constitution as the commencing day. There can be thus, no doubt that the Medical and Dental Council Ordinance, 1962, and the Regulations made under sec tion 33 thereof, which were in force before the commencing day are, the existing law. 10. It would be pertinent to refer here to Item 4 of the concurrent list falling under Part II of the 4th Schedule of the Constitution. It is reproduced below : "Legal, medical and other professions. "Section 33 (2)^-".d"; the Regulations framed thereunder, and the Punjab Health Department Rules 1979. undoubtedly fall within the ambit of this entry. Under Articl 142 of the Constitution, dealing with distribution of powers between the Federation and the Provinces, both the Parliament and the Provincial Assembly have powers to make laws, with respect to the matters enumerated in the concurrent list Article 143, however, embodies the weir established rule of the Federal Constitution, that in case of A conflict between the Federal and Provincial Laws, the Federal Law prevails, and the Provincial law to the extent of repugnancy is void In view of the rule under-lying Article 143, if on a subject there is already a competently B made existing Federal law, evincing an intention to cover the whole field, the provincial legislature looses authority to validly make any law in the same field which cannot stand together with existing Federal Law. It would thus, follow that when two such competing laws, enact two divergent provisions, the Federal law must prevail.The qualification 1 ! laid down by 'the Commission in the advertisement, so far as these are inconsistent with he regulations are liable to be ignored. 15. To the Constitution so marked is the supremacy of the Federal legislation over the Provincial .Legislation qua the concurrent list that under Article 143, even the subordinate legislation bearing the character of "exist ing law" competently made in exercise of the authority given by Federal enactment cannot be over-ridden by provisions of the Provincial legislature, much less by the rules making authority exercising power emanating from such legislation 16 However, the void ness of the Provincial law, on account of repugnancy to the existing Federal law, in contemplation of Article 145, does not have he effect of completely obliterating it, from the Statute Book but it is merely stripped off the legal force and renders ineffective as long as the effect of the aramount existing law, causing voidness is not removed. Thus, till such time the regulations hold the field, the rules shall remain eclipsed. . 17. The case may also be examined from other point of view, it is a Fairly established rule that when the legislature has directed its attention to ft articular subject, and specifically makes a provision on it, in unambi guous term, then the general provision cannot be extended to cover the aroe subject. Section 33 specially grants powers to the Pakistan Medical and Dental Council, to prescribe minimum qualifications for recruitment of teachers for Medical and Dental Institutions, On the other band, section 23 of the Pun jab Civil Servants Act, 1974, merely postulates a general rule making power for carrying out the purposes of the Act. Apart from the (insurmountable hurdle posed by Article 143, on the general principle as well, such rule making power, cannot be permitted to over-ride Section 33(2). The rules therefore, cannot be upheld and must give away to the Regulations. 18. For the foregoing reasons this writ petition is accepted, the rejec tion of the petitioner's application by the Punjab Public Service Commis sion, n account of lack of qualifications, is, declared to be without lawful authority. His application-shall be entertained and dealt with in accordance with law, rovided no medical graduate is available. The parties are left to bear their own costs. (TQM) , Petition accepted.
PLJ 1985 Lahore 358 PLJ 1985 Lahore 358 Present ; mahboob ahmad. J UNITED BANK LIMITED, 1.1, Chundrigarh Road , Karachi Plaintiff versus JAFFAR FLOUR & OIL MILLS LIMITED, Davis Road , Lahore and 2 OthersRespondents C. O. S. No. 86 of 1983. heard on 20-4-1935. (i) Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)-
Ss. 2 (f) & 15 read with Banking Companies (Recovery of Loans) (Amendment) Ordinance. 1983 (II of l983)-Ss. 2 & 8-Special CourtJurisdiction ofSuits manifestly valued $t less than rupees ten lacs each irrespective rf consideration arising from their consoli dation and submission of counter claim (in one suit)Held : Such suits being triable by Soecial Court as defined by S. 2 (f) (i) of Ordinance, their transfer to High Court not to be warranted or called for by any provision of Ordinance. [P. 3621.4 (ii) BankiMj Companies (Reeovery of Loans) Ordinance, 1979 (XIX of 1979)
S. 2 (f) read with Barking Craipanies (Recovery of Loans) (Amendment) Ordinance, 1983 (II of 1983)Ss. 2 & 8 Special court Jurisdiction ofPending caseTransfer ofHeld : By mere sub- : mission of counter claim in suit or by virtue of consolidation of on: suit with another jurisdictional value of suits not to undergo any change so as to receive accretion thereby. [ 362]£ IX OH) Constitution of Pakistan , 1973 -Art. 2Q3 read with Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)S 2 (f) (ii) High Court-Pawer to superintend subordinate courtsExercise of Hieh Court seized of suits as special court under provisions of Banking Companies (Recovery of Loans) Ordinance, 1979Held : Jurisdiction of High Court under Art. 203 of Constitution to have hardly any relevance. [P. 362]C (If) Banking Companies (Recovery of Loans) Ordinance, 197 (XIX of 1979) S. 2(f)(H)See Constitution of Pakistan , 1973Art. 204. [P. 362]C Messrs. Afiah Ahmad Khan & Mofuin Zaidi, Advocates for Plaintiff. Ch. A, Waheed Saleem, Advocate for Respondents No. 1 & 2. Mr. Jamil Ahmed, Advocate for Respondent No. 3. Date of hearing : 20 4-1985. order By this order I propose to deal with the common preliminary objection raised by the plaintiff as regards the jurisdiction of this Court to entertain and try the two suits (COS No. 10 of 1983 and COS No. 86 of 1983) filed by it against the defendants Jaffar Floor Mills etc. 2. The necessary facts, briefly stated, are that United Bank Limited, the plaintiff, instituted a suit against the defendents (numbered in this Court as COS No. 10 of 1983) on 7th of February, 1977, for recovery of Rs. 5,30,388.30 initially in the Court of Senior Civil Judge Lahore, which on promulgation of the Banking Companies (Reecovery of Loans) Ordinance, 1979 enforced on 27-3-i979, was transferred to Court of Special Judge (Banking) Lature. In this suit when it was pending before the Senior Civil Judge Lahore issues were struck on 3rd of October, 1978. 3 The plaintiff filed another suit (now numbered as COS No. 86 of 1983 in this Court) on 26th of January, 1982, in the Court of Special Judge (Banking) Lahore for recovery of Rs.^4,78,014 97 against the'same set of defendants. In COS No 86 of 1983 defendant No. 1 filed an application for leave to appear and 'defend the suit. The learned Special Judge (Banking) Lahore by his order datsd the 23rd of January, granted the leave to appear and defend the suit and adjourned the case to 24th of February, 1983, for filing of written statement. The written statement and set off/counter claim was filed in that Court on 6th of March, 1983. On 5-41983 the Special Judge (Banking) Lahore passed the following order : "Counsel for the parties present. Order United Bank Limited has brought a suit for the recovery of Rs. 4,78,0t4.97. The defendants had been permitted to contest the suit and they have filed the written stat^msnt and counter claim. The counter claim is of the value of more than rupees ten lacs. In this way it has gone beyond my jurisdiction under the amended Ordinance. The file is, therefore, sent to the High Court for trial. 2. There is another suit between the same parties. It is of the value of Rs. 5,30,388.22. The counsel for the plaintiff nas applied for the consolidation of the two suits on the ground that the same question of law and facts are involved in this suit between the same parties and even pertains to the same cause of action. The counsel for the defendants Nos. 1 and 2 has no objection in consolidating the two suits in view of the above mentioned reasons. The suits are, therefore, consolidated. The proceedings shall be taken out in the suit under orders. The other suit will come up alongwith this suit." 4. In Suit No. 10 of 1983 the learned Special Judge (Banking) Lahore passed the following order on the same date, viz. 5-4-1983 : "Counsel for the parties present. Order This suit has been consolidated with other Suit No. 878/82 between the parties. The file is to come up alongwith that suit and is transferred to the Lahore High Court, Lahore ." 5. After necessary service of the parties when the cases came up for hearing before me the objection as to whether this Court can entertain and try the two suits aforementioned when the jurisdictional value of both the suits is less than Rs. 10 lacs, merely because a counter claim for recovery of Rs. 1,50,35,000/- has been filed in one of the suits was raised. . 6. The learned counsel for the plaintiff submitted that it being the admitted position that the jurisdictional value of the two suits as instituted by the laintiff is less than Rs. 10 lacs these would obviously be triable by a Special Court as defined by Section (2) (f) (i) of the Banking Companies (Recovery of Loans) Ordinance, 1979 and that merely because a counter claim of more than Rs. 10 lacs had been filed in one of the suits will not alter the above position especially when the counter claim itself has not been lawfully presented. 7. The learned counsel for the plaintiff also submitted that a counter claim is not envisaged, by any of the provisions of the Code of Civil procedure aqd that the only legal provision for a clajm that may be mad.e. in the Court of Special Judge (Banking) Lahore on 24-1-1983. He with reference to the rder Sheet of the Special Judge (Banking) Lahore point ed out that the written statemsnt/claim had in fact been filed on 6th of March 1983. when the Banking ompanies (Recovery of Loans) (Amend ment) Ordinance. 1983, had already be'en promulgated on 30th of January, 193, by which Ordinance the pecuniary urisdiction of the Special Judge (Banking) had been limited to enttfainment of suits of less than Rs. 10 tecs, _ 12. Strictly speaking the question fwfriring determination at this stage is whether the transfer of the two suits to this Court under the Banking Companies (Recovery of Loans) Ordinance, 1979 is valid. The answer to this question will depend on the jurisdictional value of .the two suits. It is undeniable that taken individually and irrespective of the consideration arising from consolidation of suits and submission of counter claim in one suit, he suits are manifestly valued at less than rupees ten lacs each- That b-ing so, they are triable by Special Court as defined by Section 2 (f) (i) of the rdinance and their transfer to the High Court is not warranted or called for by any provision of the Ordinance. 13. It is unquestionable that by mere'submission of a counter claim lip a suit or by virtue of consolidation of one suit with another its juhsdicgtional value does not undergo any change so as to receive accretion there toy. No provision or principle of law has been cited to the contrary. 14. In the above view of the matter, the two suits along with the counter claim shall have to go back to the Special Judge (Banking) (Special Court set p under Section 2 (f) (i) of the Ordinance) for disposal accord ing to law. 15. Before parting with the case it remains to be observed that on the view I have taken of the matter in hand 1 do not feel upon to deal with the question of maintainability or otherwise of the counter claim and thus to forestall a decision on this point by the Special Judge (Banking), 16 As regards th request for transfer of ftSe suit by virtue of power ex'rcisable by the High Court under Article 203 of the Constitution of Pakistan suffice it to say that I am seized of the suits.as a Special Court as provided by Section 2 (f) (ii) of thj Banking Companies (Recovery of Loans) Ordinance, 179, and that being so the jurisdiction of the High Court under Article 203 ibid has hardly any relevance. 17. In view of the foregoing discussion the contentions of the learned counsel for defendant No. 1 being without force the objection raised by the learned counsel for the plaintiff as'supported by the learned counsel fqr the other defendant is sustained and both the suits are remitted back to the Special Judge (Banking) Lahore for adjudication in accordance with law. (TQM) Order accodtingly.
PLJ1985 Lahore 368 PLJ1985 Lahore 368 Present: muhammad aslam mian, J A/«jrjCHENAB TEXTILE MILLS LIMITED, Lahore Petitioner versus MUHAMMAD SIDDIQ and 3 OthersRespondents Writ Petition No. 1152/84, decided on 12-12-1984. (I) Urban Resit Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)
Ss. 13 & 15 read with Provisional Constitution Order, 1981 (CMLA'i 1 of 19< 1)Art. 9 and Civil Procedure Code, 190 (V of 1908)O. 1. R 10Rent ControllerProceedings beforeAddition of partyApplication for-O.der onFailure to signEffect of Application filed by petitioner for impleadment as party dismissed by Rent Controller by his order in his own hand writing Such order finding mention in order sheet, however, remaining unsigned Petitioner subsequently filing appeal against order on main appli cationGround of order on application under O. 1, R. JO having not been signed and as such application having not been disposed of not taken in appealfield : Order of Rent Controller having merged into order of Additional District Judge in appeal, application made by petitioner under Order I, R. 10, CPC not to be regarded as yet pending and not disposed of [P. 371]X PLJ 1981 Lahore 185 ; AIR 1970 Lanore 294 & AIR 1934 PLJ 1973 SC 33 ; PLJ 1977 Lahore 111 ; 1938 PC 292 ; PLD 1914 SC 865 ; PLD Lahore 763 considered . (ii) Provisional Constitution Order, 1981 (CMLA's 1 of 1981) -Art. 9 See : Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)Ss. 13 & 15. [P. 3/1]^ Mian Hamid Farooq, Advocate for Petitioner. Ch. Muhammad Bakhsh, Advocate for Respondent, Date of hearing : 7-11-1984. judgment The petitioner through this Writ Petition seeks a declaration that the order dated 18-9-1982 and, 19-12-1982 as merged into the final order dated 4-6-l9d3 passed by the learned Rent Controller Lahore and the order dated 6-12-1983 passed by the learned Add). District Judge, Lahore , are without lawful authority and of no legal effect. 2. The facts of the case briefly are that respondent No. 1 filed an ejectment petition for the eviction of respondent No. 2 from the upper flat of property No. 122 Multan Road Lahore , on various grounds. 3. The respondent No. 2 resisted the ejectment application by main taining that the relationship of landlord and tenant did not exist between him and respondent No. 1. 4. The learned Rent Controller on a preliminary issue that whether "there exists any relationship of landlord and tenant between the parties" gave bis finding in favour of respondent No. 1 vide his order vdated 189-1982 whereafter the learned Rent Controller passed an order under section 13 (6) of the Punjab Urban Rent Restriction Ordinance 1959 requiring respondent No. 2 to deposit the arrears as well as the future rent. 5. During the pendency of the application the petitioner-firm filed an application under order 1 rule 10 C. P. C. before the learned Rent Control ler for impleading it as a, party in the ejectment petition, the notice of which was given to respondent No. 1 who contested the same. Thereafter the learned ent Controller dismissed the application so made by holding that since he had already determined the relationship of landlord and tenant as xisting between respondent No. 1 and respondent No. 2, there fore, he was not prepared to re-enter upon the subject because that would tantamount to eviewing of bis earlier order dated 18-9-1982 which power he tacked. 6. The learned Rent Controller after resolving certain issues on merits, ultimately accepted the application for ejectment and ordered ihe viction of respondent No. 2 y/
PLJ 1985 Lahore 372 PLJ 1985 Lahore 372 Present : gul zarin kiani, J SHARAFAT ALIAppellant versus MUHAMMAD BOOTA and AnotherRespondents FAO No. 116 of 1984, heard on 12-11-1984. (i) CM! Procedure Code, 1908 (V of 1908)
O. IX, R. 9 SuitDismissal in default ofRestoration ofPro ceedings for-Held : Proceedings under O. IX, R. 9, CPC being original roceedings, party applying for restoration of suit to be entitled under law to substantiate by evidence grounds taken in support of such application. [P. 14\A (ii) Civil Procedure Code, If08 (V of 1908) .-O. IX, Rr. 8 & 9-SuitDismissal in default ofHeld : General policy of law leaning in favour of adjudication on merits, dismissal in default (of suit) to serve as exception to such general rule. [P. 374] (HI) Jurisdiction
Exercise ofHeld : Court vested with jurisdiction to exercise its jurisdiction firstExercise of jurisdiction by higher tribunal without allowing former to exercise it to tantamount to pre-empting jurisdic tion of lower court (which may not be permissible under law. [P. 374]C (it) Justice
Administration ofCourtDuty of Held : Litigant coming to court to seek justice not to be denied same by court unless these be insuperable legal hurdles in its way to dispense justice for which purpose alone it exists. [Pp. 374 & 375]/> Mr. C. A. Rehman, Advocate for Appellant. Mr, Muhammad Afzal Wahallah, Advocate for Respondent. Date of hearing : 12-11-1984. JUDGMINT Facts in brief giving itse to the present civil appeal are that Sharafat Ali instituted a civil suit seeking specific performance of an agreement dated 19-6-1982 in respect of land measuring 33 kanals 5$ mar las against Muhammad Boota and another in the Court of Senior Civil Judge, Gujranwala. Notices were issued to the defendants. Defendants appeared in Court. On 11-7-1984, since, neither the plaintiff nor his counsel had put in appearance when the defendants were present-, learned Senior Civil Judge dismissed the suit for default in appearance. Petition seeking restoration of the suit dismissed in default was made on 16-7-1984, five days after the dis missal of the suit, under Order IX rule 9 C. P. C. Restoration petition with out calling for the reply from the defendants has been dismissed on 19-7-1984, Appeal allowed.
PLJ 1985 Lahore 375 PLJ 1985 Lahore 375 [ Rawalpindi Bench] Present: qurban sadiq ikram, J MUHAMMAD NAWAZ-Petitioner versus SARDAR KHAN and 16 OthersRespondents Writ Petition No. 55-R of 1984, decided on 20-11-1984. (i) Land Revenue Act, 1967 (W. P. Act XVII of 1967)- S. 136Partition Restrictions on General agreementEffect ofHeld : Provisions of S. 136 of Act being not exhaustive, general agreement contained in Short Wajibul Arz not to be overridden (by such section). [P. 377] A (ii) Land Revenue Act, 1967 (W.P. Act XVII of 1967)
Ss. 135, 136, '37, 140 & 142. read with Provisional Constitution Order. 1981 (CMLA's 1 of 1981)-Art. 9Sftamilat Dth- Partition ofApplication forAll co-sharers neither impleaded as party in petition before Revenue Officer nor consulted as to method, effect and sanction of partition proceedingsHeld : Large number of share-holders having not been (made party and as such) consulted. Revenue Authorities te be justified to remand case for fresh decision according to law [P. 378]j5 PLJ 1981 Peshawar 11 ref (Hi) Land Revenue Act, 1967 (W. P. Act XVII of 1967)
S. 142 read with Limitation Act, 1908 (IX of 1908)S. 5 - Revenue OfficerOrder ofAppeal againstDelay in filing of Condonation ofNames of appellants not figuring in list of respon dents in partition proceedingsAppeal against order of Revenue Officer, however, filed (by such appellants) within time from date of their knowledgeHeld : Delay if any in filing appeal before Collector rightly condoned. (P. 378JC Mr. Btuhir Ahmad Ansari, Advocate for Petitioner. Pate of hearing : 20-11-1984. order This is a Constitutional petition by Muhammad Nawaz seeking to challenge the order of the Member Board of Revenue dated 17-4-K4, the order of Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi, dated 21-9-82 and the order of Collector dated 7-12-81 in proceedings for partition of Shamilat Deh land measuring 11875 kanals 6 marlas bearing Khewat No. 43, situated in Dboke Rehmat, Tehsil Pindi Gheb, District Attock. 2. The facts giving rise to this petition are that Muhammad Nawaz petitioner who claims to have l/4tb share in the entire Shamilat Deh land, filed an application for its partition in the year 1972. It was conceded by the learned counsel for the petitioner before me that there were more than 200 co-sharers of the Shamilat. The Assistant Collector-II Grade before whom the partition proceedings were pending, sanctioned the mode of partition on 8-3-72. The partition was finalised and sanctioned by A.C-I on 18-3-74 where after instrument of partition was sanctioned vide mutation No. 167 dated 31-5-77. Sardar Khan etc. respondents Nos. 1 to 14 feeling aggrieved with the said proceedings and the mutation, filed appeal before the Collector on 5-5-81. This appeal was accepted vide order dated 7-12-81. It was held by the learned Collector that all the co-sharers of the Shamilat had not been served according to law during partition proceedings and that according to the Short Wajibul Aarz, every part of Shamilat Deh including Charagah could not be partitioned. He, therefore, set aside the order of partition dated 18 3-74 and Mutation No. 167 dated 31-5-77. As a result of this, he remanded the case to the Assistant Collector for fresh bearing and decision on merits. While disposing of this appeal, he condoned the delay in filing of appeal by Sardar Khan etc. Muhammad Nawaz petitioner went up in appeal before the learned Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi . It was held by the learned Additional Commissioner (Revenue) that all the respondents were not properly served and that they were pfeceeded ex parte and therefore, condemned unheard. He, therefore, came to the conclusion that the Collector rightly accepted the appeal and remanded the case for fresh deision on merits. The appeal was consequently dismissed on 21-9 82. Feeling aggrieved, Muhammad Nawaz petitioner went up in revision before the learned Member (Revenue) Board of Revenue, Lahore . The said revision was dismissed on 17-4-84 because firstly, according to Short Wajibul Arz, the land set apart for common grazing ground was not partitionable and secondly, that reasonable efforts were not made to secure the service of the respondents and other land owners who had share in the Shamilat Deh. Hence this petition. 3. It is cote ided by the learned counsel for the petitioner that the Revenue Authorities in the impugned orders misread Shart Wajibul Arz and misinterpreted the provisions of section 136 of the West Pakistan Land Revenue Act and that on account of the general proclamation in the village. <t could not be said that all the co-sharers of Shamilat Deh had no knowledge of the partition proceedings. It was, therefore, argued that the impugned orders should be struck down as illegal and without lawful authority. Shart Wajibul Arz of village Dhoke Red mat for the year 1976-77 been placed on record of tais petition as Annexure 'H'. Shart not necfMarilv operate as a bar to partition, it being the duty of Revenue Officer to hims?lf decide whether such class of property should or should not be partitioned. According to para. 18.6 of the said Manual, all parties interested should he summoned by the Revenue Officer making inquiry in the partition application to appear before him. This paia requires that special attention shauld be given to the requirement of the villagers including tho-e or' non-proprietors in the matter of common grazing land and Shan W^jibul Arz of a village should in every case be consulted. 4. I have gone through the impugned orders and I find that the Revenue Authorities have, in no way, acted against the provisions of lection 136 -ibid,- A perusal of the application for partition of Shamilat Deh dated 8 3-7^ (Annex 'D') would indicate that although according to the learned counsel for the petitioner there were more than 200 cosharers or the Shunrilut Deh, but only 81 persons were impleaded as party in the said application. All the co-sharers were neither impleaded as party in the petition nor consulted as to the method, effect and sanction BJof the partition proceedings. As such even if there was a general pro- 'clamation of theie pr ceedings in the village, the co-sharers who were not impleaded as party were not expected to attend hearing of the proceedings. A large number of ^hare-holders having not been consulted, the Revenue Authorities were justified to remand the case for fresh decision according Ito law. Reliance is placed on Haji Aftab Hussain and others v. Additional Commissioner (Revenue) (PLJ i981 Peshawar 1U PLD 182 Peshawar 37). The names of Sardar Khan etc. respondents do not figure in the list of 'respondents in the partition application. As such, if there was any delay t'in filing of the appeal before the Collector, it was rightly condoned (because the appeal wa« within, time from the date of their knowledge. 5. In view of the above, I find no merit in this petition which is accordingly dismissed in limmt. (TQM) Petition dismissed.
PLJ 1985 Lahore 378 PLJ 1985 Lahore 378 Present ': gul zarin kjani, J GHULAM MUHAMMAD AHMAD-Petitioner versus MUHAMMAD ASLAMResponden Civil Revision No. 1407-D of 1984, heard on 3-42-1984. (i) CI?11 Procedure Code, 1908 (V of 1908)- -S. 115High CourtRevjsional Jurisdiction ofExercise of Question not raised before lower courts-Agitation ofFacts necessary for ecision on question of limitation not brought on recordSuch question not raised before trial court or court of appealDefendant not rging even single word about bar of limitationH'1'J : Such absolute new point not to be allowed to be agitated in civil re vino n. [P. 382]^ & B (li) Chit Procedure Code, 1908 (V of 1908)-
-S. 96Original decreeAppeal againstFresh pleaRaising ofAdditional District Judge proceeding to dismiss suit (in appeal) pa point not raised in issue before trial courtHeld : In absence of specific pleadings, issue and necessary evidence in support thereof, (such> point not to be (allowed to be) raised in court of appeal. .[P: 382JC Sh. Naveed Shehryar, Advocatefor Petitioner. Maulvi Ehsaaul'Haq, Advocate fpr Respondent. Date of hearing : 3-12-1984, 1 judgment This Civil Revision is directed against judgment dated 3-7-1984 of learned Additional District. Judge in appeal maintaining judgment and decree dated 25-7-1981 dismissing the plaintiff's suit for possession by pre emption. 2. Facts are that Ghulam Hassan the owner of lan'd measuring 3 kanals 2marlas comprised in'several killa numbers of Square No. 20,59 and 84. through a court decree dated 23 6-1976 transferred the same for an ostensible consideration of Rs 6, OO/- in favour of Muhammad Aslam son of Hashara, respondent. Ghulam Ahmad, a brother of vendor Ghulam Hissan, pre-empted the sale through a civil suit instituted on 22-10-1980 in the Court of Civil Judge, Mandi Baha-ud-Din. Rjght of pre-emption was claimed on the ground of biing an heir, co-sharer and owner in patti. Vendee resisted the suit. In his written statement, it was fated that the sale in his favour was protected on the ground of his being a tenant-in-occupation. Averments on facts made in the plaint were also denied. Principal defence was that since t'he vendee defendant was a tenant in occupation of the land at the time of sale, therefore, pre-emption suit instituted against him was not maintainable. 3. On 10-1-81, learned Civil Judge settled the following issues : (1) Whether the plaintiff has got the superior right of pre-emption as against the defendant-vendee ? OPP (2) Whether the defendant is tenant over the suit land prior to this sale? :OPD (3) Whether a sum of Rs. 6.000/- was fixed and actually paid in good faith as sale price ? OPD (4) If issut No. 3 is not proved then what was the market value of the suit land at the time of its sale ? OP Parties. (5) Relief. The suit was then adjourned for the plaintiff's evidence. On 30-3-81, learned counsel for the plaintiff tendered khasfa girdawari Ex P.I, copy of the decree-sheet Ex. P.2. and pedigreetable P 3 in evidence and closed the affirmative side of evidence reserving a right to produce plaintiff in affirmative as well as in rebuttal after the defendant's evidence. Defendant then, apart from appearing as his. own witness as D.W 2 produced GhuUm Rasool D. W. 1. Copies of Khaira Girdawari ex, D. 1, D 2, not resisted by the Vendee oa the ground that the tranfr In dispute was not pre-emptible. In the absence of any objection io, the written statement, issue raised on the point and without allowing the parties to adduce evidence in support of the nature of transaction, embodied in the consent decree, the point could not have been agitated or made the basis for dismissing the claim for pre-emption. Trial court had proceeded on the premise that the transaction was emptible Decision of learned Additional District Judge passed in appellate jurisdiction has sprung a surprise upon the plaintiff pre-emptor. Altogether a new case has been built for the vendee by the learned appellate Court, which he himself had not pleaded in the written statement. It was also submitted that the learned Additional District Judge has .found as a fact that the yendee was iri possession .of : the land measuring 14 mor/o5 only and as regards the rest of the land, measuring 2 kanals and 8 marlas, plaintiff had a superior right to pre-empt. On the basis of this finding, the court of appeal should have proceeded to pass a decree for possession by pre emption in respect of the land measuring 2 fcowa/s 8 mar I as in dispute on pavment of proportionate price Instead . the court on altogether uatenable grounds proceeded to dismiss the suit. Mr. Ehsan-ul Haq, learned counsel for the respondent however contended that the suit for possession on the basis of pre-emptive rights was clearly barred by time under Section 30 of the Punjab Pre-emption Act. .1913, inasumch as possession was taken under a court decree dated 23-6-76, more than a year preceding the institution of claim for pre-emption in Civil Court . In order to substantiate his contention, in regard to transfer of possession of the land, he referred to the entries of Khasrq Girdawari Ex. PI, Dl and D2. It was contended that though the bar of limitation was not pleaded in the written statement either expressly or implied ly yet ..when the entire, evidence was available on record then it became the doty of the court to 1ook : into the question of limitation by itself and decide whether claim presented in court suffered on account of limitation. Reliance was placed on sec tion 3 of the Limitation Act and Narasingha Sana Cos ami v. Prolhodman Tevari (47 Indian Cases 25). Dulo v. Muhammad Natbu and another (44 Indian Cases 251) ; K S. Agha Mir Ahmad Shah and others v. K S. Agha Ytqoob Shah and others [PLD 1957 (P. W ) Kar, 258] to contend that the question of limitation though neither raised in the trial Court 1 nor in the grounds of appeal may be urged-at the hearing of the appeal for the.first time bf ing a pure question of law. Since the entire evidence necessary for decision on .the.question of limitation was already on record, the Court in proper exercise of its- jurisdiction -could take notice'of'Jhe plea raised, it being a pure question- of law -'-' However., it ; was conceded that the vendee was itj, possession of> land : measuring 14 Mar las drily. This part of the finding recorded by learned Additional District Judge in order dated 30-7-1984 that was accepted by the vendee. Right of pre-emption as found by learned Additional District Judge, qua land measuring 2 JTono/J and 8 Afar/as was also n'>t questioned by learned counsel for the respondent. Price as stated bad been admitted. 7. Suit for pre-emption on basis of consent decree was instituted on 22-10-80. Defendant in the written statement did not plead bar of limitation. In fact the sole defence qua the right of pre-emption was bji occupation of the Ia,0(J as qon-oecupanfey tenant, This plea mention in preliminary objection No . 1 , In para . 3 of the written state ment, while denying the superior right of pre-emption, the efendant « stated that he -was in possession of the landjn dispute as non-occupancy tenant. It was not pleaded in the written statement as to hen the sale was mode or physical possession under the sale was transf» rred to the vendee by 'he, vendor providing, a clear notice to the would be re-mptors. On the other hand, the defence was that the land was already in possession of the defendant vendee as tenant. Such being the leadings, there could be no question regarding transfer of physical possession of the land under the sale. .Nonetheless, the defendants ounsel insisted that the plea of limitation now being raised be considered on its own merits though it be contrary to the stand taken in the written tatement. 1 am afraid, the contention has no force. Question of limitation could no doubt be raised, had the facts necessary for its decision een brought on A file by the parties.' ? In- t'he instant case the defendant has not said a word about the dale of sate and the transfer of physical ossession f the land whole or in part under the sale On the other hand, the plea was that he was already in possession as tenant Plair.tiff-pre-emptor as not a party to the consent decree. Naturallv he could not be burdened with the knowledges of consent decree. Since, physical possesion of, the and .whole or in, part was not transferred on site which could have possibly 'served as a notice to the would be pre emptors. it cannot be said that in .the (absence of such evidence, the question of limitation could be decided, more |so, when it has not been raised betore the trial court or the court of ppeal. B It is absolutely a new point which cannot be allowed to be agitated in icivil revision. Even in his statement, the defendant vendee .did not utter la word about bar of limitation. Supreme Court of Pakistan in case Ghalam Muhammad and others v, Malik Abdul Qadlr Khan and others (PU 981 SC 93), observed : ...... ''No doubt one trend in old authority was that every point relatetable to limitation could be urged In the higher forum even if not pressed earlier but this court finally resolved the contro versy in Kbairati and 4 others v Aleem ud Din and other iPLJ ~^~" . 1973 SC 30) The ratio of this decision is that although it would be necessary for the appellate Court (here the High Court) to examine whether the proceedings instituted before it are within limitation, it will not be under any legal obligation to do so if the plea of limitation related to the institution of the suit, proceedings before the trial court. Learned Counsel tried to distinguish this authority on the ground that it applies only when no appeal/revision was filed by the party (relying on the point of limitation) and not hen the point is not pressed at the time of the argument. The distinction is too technical to be , given any importance". Question of imitation now raised, in the absence of an iota of evidence in supoort of transfer of physical possession cannot be successfully allowed to be rged by learned counsel for the vendees'respondents During all Jthese year?, when the controversy renaain^d pending before the two courts c ]bsl3W, no s«ep was taken to amend the written statement and raise thepie to supoort of bar of limitation. It is too late in the day to rge this point. Learned counsel also conceded that the point da which learne<$ Additional District Judge had proceeded to dismiss the suit, qua the nature of transaction was not pleaded in the written statement nor Was it raised in issues before the trial court. In the absence of specific pleadings,! issue and the necessary evidence in support thereof, the point could not be raised in the court of appeal Both the points i. e. Bar of limitation' and the nature of transaction cannot be allowed to be raised. 8 On'he evidence present on record, right to pre-empt the land measuring 2 kanals 8 marl is stands proved and admitted also. Price as noted above has been admitted by the pre-emptor. When right to proemot stands proved and price admitted, next question arises whether the case be remanded to the court of appeal for determining the price payable subject to. which the .suit could be decreed Mr. Naveed Shehryar, learned counsel for the petitioner/plaintiff has stated that m order to avoid remand and furtner prolongation of the controversy, petitioner was prepared to pay a sum of Rs. 6,0(K>/- for land measuring 2 kunals and 8 marlas over which his supeior right of pre-emption stood fully established In view of the statement so made, remand becomes u«-nece»sary. Civil revision is allowed. The judgments and de rees passed bv the courts blow dismiss ing the pre-emption suit instituted by the plaintiff/petitioner are set aside. Plaintiff's suit for possession by pre-emption is decrerd to the extent of land measuring 2 kanals 8 marlas subject to the payment/deposit of Rs. f.OUO/-.-minus Zar-e-Panjum already in deposit in court by or before 4-1-1985, failing which his suit shall stand dismissed. Parties are directed to bear their own costs. (MIQ) Suit decreed.
PU 1985 Lahore 383 PU 1985 Lahore 383 Present : uhrasap KHN, J BOARD OF INTERMEDIATE & SECONDARY EDUCATION Lahore through its Chairman, 86 Mozang Road , Lahore Petitioner versus . Syed KHALID M AH MOOD-Respondent Civil Revision No. 4I-D of 1984, decided on 3-10-1984. i) Civil Procedure Code, 1908 (V of 1908) S. 96-Original decreeAppeal againstLegal pleaRaising of Held : Plea of legal nature ordinarily to be allowed to be raised even at appellate stagePlea necessitating framing of issue and leading of evidence by parties concerned, however, not to be considered if not raised at proper stage. {P. 389]£> &E 1908 SCMR 99 & 1982 PSC 842 rel, (it) CMI Procedure Code, 1908 (V of 1908)-
S.
115
High CourtRevisional jurisdiction ofExercise of
Held : Findings on questions of fact or law recorded by court of com peter t jurisdiction not to be interfered with by High Court in exercise of its revisional jurisdiction unless such findings suffer from jurisdictiooal defect, illegality or material irregularity.
[P, 387JC
PLD 1949 PC 26 rel
(Hi)
West Pakistan (Board of Intermediate
&
Secondary
Education, Lahore
) Ordinance, 1961 (W.
P. Qrd. XVIl! of 1961)
S. 27Suit against
BoardBar ofHeld: Acts done, orders passed or proceedings taken pursuant to malice and mala fides, not to be deemed to have been done, passed or taken in accordance with provisions of Ordinance and thus not to be immuned from being challenged before courts of competent jurisdiction. [Pp. 386 & 387]B
'
.
(iv)
West Pakistan (Board of Intermediate & Secondary Education, Lahore
Ordinance, 1961 (W. P
Ord. XVIII of 1901)-
S. 29 Acts and orders of BoardProtection ofRespondent expressly alleging mala fide and (even) leading evidence to show enmity of officers of Board with bis latherHeld :
Protection pro vided under S 29 not to be available to petitioner Board unless its impugned action be held to have been taken in good faith. [P. 38o]X
Ch. Jjaz Ahmed, Advocate for Petitioner, Ch. Habibullah, Advocate for Respondent.
Dates of hearing : 4-7 & 2-10-1984.
judgment
This Civil Revision calls in question the judgment and decree dated 29-10-198.) passed by a learned Additional District Judge, Lahore
.
2.
Khalid Mahmood respondent appeartd in the Secondary School
Examination as a regular student from
Farooqi
Islamia
High School
, Baghbanpura, Lahore
, under roll number 61362, held in
April, 1963.
On 1-6-1963, result was announced and in the official gazette, published by the petitioner i.e.
the
Board of Intermediate and Secondary Education, Lahore
, his name was not mentioned.
On enquiry, he was, allegedly, intimated by the then
Headmaster of the aforementioned school that he failed in the subjects of English, Mathematics and Physics, Thereafter, the espondent, allegedly, remained ill on account of the shock he suffered due to his failure in the examination, as he was a bright student.
In 1967, after recovery from his ailment, he undertook to appear again in the Secondary School Examination and in that connection, he applied to the petitioner Board for obtaining detailed marks certificate. The certificate, thus issued, indicated that, in fact, h; had passed the examina tion eld in 1963 in first division obtaining 6lS marks.
Consequently, the respondent applie'd jfor certificate which has not so far been issued to him.
3.
The respondent instituted the suit in forma paupsris against the petitioner-Board in June, 1969, claiming damages to the tune of Ks. 50,000 on ccount of loss of his six valuable years during which he could build up bis career ; loss which he incurred on account of having become over-age ; loss of mental faculties due .to shock which he suffered due to his failure in the educational career; mental agony and torture and loss in the life
This Ordinance has subsequently been repealed, See Punjab Board! of
Intermediate
&
Secondary Education Act, 1976
(Punjab Act XIII of 1976) done; orders passed and proceedings taken in accordance with the provi-j iiodi of the Ordinance, but acts done, orders passed or proceedings taken] pursuant to malice and mala fides, cannot be deemed to have been done.!
passed or taken in accordance with the provisions of the Ordinance and thus) are not immune from being challenged before the
Courts of competent juris diction.
No exception can, therefore, be taken to the findings recorded on issues-Nos.
1 & 2, by the Courts below.
11. As regards, the findings of the learned Addl. District Judge on issues Nos. 3 & 4, it may be noticed that in his capacity as appellate Court, the learned dditional
District Judge possessed the jurisdiction to come to his own conclusion, on the basis of ev deuce adduced before the trial
Court by the parties nd resultantly, he could competently reverse the~ findings of the trial Court on the questions of fact involved ia issues Nos. 3 & 4. It is
an established roposiHon-of law-that firrdirrgs on 'questions 6f "-fact^ot of law, howsoever erroneous the same maybe; recorded by a Court of compe tent jurisdiction, annot be interfered with by the High Court, in exercise!
of its revjsional jurisdiction, under Section ll>, Civil Procedure Code,!
unless such findings suffer rom jurisdietional defect, illegality or material!
{regularity In N S. Vtnkatagiri
Ayyangar and another v The Hindu
Religieos
Endowments Board adras (P L. D. 1949
Privy Council 26), with reference to
Section ila. Civil Procedure Code, it has been observ by the Judicial
Committee of the Privy Council :
"This section empowers the High Court to satisfy itself upon three milters ;(aj thu the order of the subordinate Court is within its jurisdiction
;,(£>/that the case is one in which the Court ought to
, :
exercise jutisdict on ; arid(C-)-that-in exercising jurisdiction, the
Cpur,t.basr\pt .acied illegaTly, that is, in breach of some provision
\ of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere
because it differs, however profoundly, from the conclusion of the subordinate Court upon questions uf fact or law."
No jurisdietional defect has, of course, been pointed out in this case and, similarly, no legal infirmity in the impugned judgment has been alleged.
It has, however, been urged that on the basis of evidence adduced by the parties before the teamed trial
Court, the learned trial Ju tge had rightly'concluded that no mala fides were oroved and that the respondent was not entitled to any damages.
It has thus been argued that the learned
Additional
District'Judge, while recording an otherwise finding, has not properly appreciated the evidence available on the records.
The resoondent examined at the trial P W. 1
Abdul Kbaliq who served as Headmaster, Farooqi
Islamia
High
School
, Baghbanpura, Lahore
,from 1956 to 1964.
This witness has, categorically, stated that the respon dent was declared ti have failed in the examination held in
(963 and that on the basis of the black list supplied to the witness, he issued certificate, exhibit P. 1. to the respondent showing that he had failed in three subjects. P W. 2
Gulzar Ahmad Qureshi, another Headmaster, who served in that ca pacity from 1967 to 1969, s»ated that on having been approached by the res pondent, he issued certificates, exhibits P. 2
& P. 3. Certificate, exhibit P. I,W dated 3-7-1 %3.
According to this certificate, the respondent appearred.1, it was ruled that when an objection was not raised before the trial Court and no issue was framed regarding such objection, it could not be considered by the Supreme Court at the appellate stage. In
Mst.
Gnl Recta and another v. Mst.
Hayadar and others (1968 S. C. M. R. 979), it was observed :
"But. in the present case, it appears, that the High .Court was right in not allowing this point to be raised for the first time in revision, because, the specific plea in the plaint that the suit was within time, not having been controverted in the written statement, it must be deemed to have been admitted that the suit was within time. , In the facts of the present case, therefore, the question of limitation could not arise and was rightly not allowed to be raised,"
In the under consideration case also, in the plaint, it-has been specifically aVerred that the suit is'within time. This averment has not been controver ted and, therefore, the principle laid down in Gal
Resba's case is fully applicable to the present case. In this view of the matter, there is no legal flaw in the findings recorded by the learned
Additional District Judge to the effect that the plea of limitation, raised at the appellate stage, could not be considered.
17.
The up-shot of the above discussion is that there is no merit in tbe present civil revision petition which is accordingly dismissed.
18.
(TQM)
No order is, however, made as to costs.
Petition dismissed.
PLJ 1985 Lahore 389 PLJ 1985 Lahore 389 Present: gul zarin kiani, J M. IKRAM HASSAN-Appellant versus PROVINCE OF WEST PAKISTAN through Secretary Home Department, Government of West Pakistan, Lahore and 2 OthejsRespondents - FAO No. 93 of 1970, decided on 17-11-1984. Requisitioning of Immovable Property (Temporary Powers) Act, 1956 (W. P. Act VII of 19i6) Ss. 3 &-6-Property-Requisition ofCompensation forAssess ment of ArbitratorAward by-r^ppeal againstCommittee headed by Home Secretary considering Rs. 4.000 per month reason able compensation for property requisitioned lay Government Report of such committee., however, not considered and given weight to by Arbitrator Held : Arbitrator not to be justified to scale down amount of compensation to Rs. 3.500 per month (inclusive of certain charges) Held further : Proper weight having not been accorded to important piece of evidence, appeal filed by owner against award of arbitrator to be accepted. [P. $92]A Mr. Ahmad Hassan Khan, Advocate for Appellant. Mr. S. M Zubair, A. A G. for Respondent. Dates of hearing : lift 17-11-1984. judgment I propose to. dispose of two civil appeals (No. 93 of 1970) M.lkram Hassan Khan v Prov ! n< e of W<st Pakistan and others and (No FAO 101 of 1970) Province of West Pakistan and o'hers v. M. Ikram Hasan Khan, which are against one order dated ;8-2 1970. passed by Qazi Dastgir Ahmad, learned Additional District Judge, Lahore, in his apacity as arbitrator under Section 6 of the Punjab Requisitioning of Immovable Property (Temoorary Powers) Act 1956 (WiSi Pakistan Act VII of 19f6) assessing Rs 35,uO)/- as compensation inclusive of all taxes etc. for property Bungalow No. 9S-A, Upper Mall, Lahore, requisitioned by the Provincial Government on 20 6-61 under the above noted Act. 2. Property in question was transferred to M. Ikram Hasan Khan on 7-7-70 on the basis of transfer price assessed by the Settlement Depart ment. Build'ng at the time of transfer was in occupation of West Pakistan Rangers. As the Rangers, did not pay the rent to the transferee, he presented an eviction petition against the occupants before the Rent Controller on the ground of default in payment of rent. The ejectment was ordered on 27-4-61 directing the occupants to hand over the vacant possession of the premises to the transferee-landlord. Instead of complying with the direction of Rent Controller, respondent-Government invoked its powers under Section 3 of Act VII of 1956 and requisitioned the property on 20-6-61. Department delayed the assessment of the compensation. Consequently, the owner filed a writ petition No. 620 of 1968 in the Lahore High Court. It was during the pendency of the writ petition that be was informed that compensation at the rate of Rs. 2.000/- per month has been assessed by the Department in respect of the requisitioned property. The owner disputed the adequacy of the assessed compensation, and applied under Section 6 of Act VII of 1955 for determination of the fair compensation before the learned District Judge, Lahore with prowers of an Arbitrator undsr the above stated Act. Reference consequently came to be dealt with by the learned Additional District Judge, Lahore . The pleadings of the parties gave rise to the following issues : (1) What is the fair compensation per month of the property in dispute ? (2) Whether Rs. 2.000/- p.m. is not the fair compensation of the property in dispute ? (3) fttlirf. 6. Admittedly, the .rtqulstioned buHdrng sprawls over an area of land measuring 14 kanals 15 martas and is situated on a most attractive point on the Upper Mall. It consists of more than 40 rooms with spacious lawns, servant quarters, annexe, canteen, washing ghat and a tube well. Property was in possession of Rangers at the time it was transferred to the owner. . Rent was not paid to him and so he sought the eviction of rangers before the court of learned Rent Controller. An order of ejectment was passed but then the Government stepped in, invoked its powers under Act VII of 1956 and requisitioned the property. It is evident that, for several years, the Government did not fix the compensation payable to the owner. At last he invoked the constitutional jurisdiction of this Court seeking necessary relief. Then some amount was assessed. Of course, under Section 6 of Act VII, first, an attempt has to be made for a negotiated agreement in.regard to the compensation payable for the requisitioned property (ailing which the matter is placed before the arbitrator to determine the quantum of compensation. In this case, there was no evidence that there was any negotiated settlement between the owner and the requisitioning authority for the amount of compensation payable. The dispute in these circumstances was rightly placed before the arbitrator. The learned arbitrator, lightly dis-satisfied with the oral evidence, has assessed the compensation at Rs. 3500/- inclusive of charges for necessary repairs and taxes etc. No ground had been shown as to why the report of a Committee headed by senior Government officials had not been considered and given due weight by the learned Arbitrator. The Committee headed by Home Secretary was constituted for this purpose by the Home Secretary himself. After due deliberation and taking account of the nature of the property, the costs of the land and the construction raised thereon, in para 7 of the report it recommended that the rent from the date of acquisition upto Octo.ber, 1965, at Rs. 2.00U/- plus 30% for repairs and taxes and thereafter at Rs. 4.000/- inclusive of repairs and taxes. This report was brought on record by the appellant without objection from the opposite side. No objection regarding mode of proof was offered at the relevant time. It is now too late to contend that the document has not been properly proved. It is not the case of the Government that the Committee was not consti tuted or that it did not make the report Ex. PW 3/1. When the property of a private owner is requisitioned under Section 3 of Act VII of 1956, reasonable compensation for its use and occupation has to be paid by the requisitioning authority to compensate the deprived owner of the user of tiis property. In the case under consideration, the h-gh officials of the Government itself thought that Rs. 4,000/- was a reasonable compensa-tion, though the owner's claim was a little higher. When such was the case, the arbitrator was not justified to scale down the amount of comoensa tion to Rs. 3.500/- p.m. inclusive of certain charges. He has not accorded the proper weight to this all important piece of evidence. I, therefore, accept the appeal filed by the owner (FAO No. 93/70), set aside the order of learned arbitrator/Additional District Judge and direct that the respondent shall now pay a compensation at the rate of Rs. 4,000/p m. inclusive of repairs and taxes to the owner from the month of October, 1965 till the date title remained vested in him. Respondent-Government will be entitled to adjust the amount .already paid to the owner. Civil Appeal (FAO No. 101/70) is dismissed. Parties-to bear their own costs, - (M1Q) Order accordingly.
PL J 1985 Lahore 393 PL J 1985 Lahore 393 Present: zia mahmood mirza, J IQBAL and Another Petitioners versus MUSHTAQ AHMAD and 9 OthersRespondents Writ Petition No. 1464/68, decided on 26-3-1984. (i) Constitution of Pakistan , 1962, Art. 98 read with Land Revenue Act, 1967 (W P. Act XVII of 1967)Ss. 42, 44 & 45Mutation proceedingsDecision inTitle- Determination ofQuestion of entitlement of parties to inherit property in dispute involved in caseHeld : Direction of Additional Commissioner and Member Board of Revenue that parties should get their dispute settled in civil court to proceed on correct legal principles and not to be open to exception on any plane. [P. 396JC (ii) Land Revenue Act, 1967 (W. P. Act XVII of 1967) ,Ss. 42, 44 & 45 -Mutation proceedingsDecision inTitle- Determination ofHeld : Decision in mutation proceedings being no decision as to title of parties, Revenue authorities not to act as arbiters of parties in proceeding for sanctioning mutationHeld further : Mutation being sanctioned by Revenue authorities (merely) to keep their own recon in order and up-to-date, civil court alone to (competently) decide ouestion of title. [P 395J/4 PLD 1970 Lahore 614 , AIR 1956 PC 100 ; AIR 1930 Allahabad 521 & AIR 1927 Allahabad 338 ref. (iii) Land Revenue Act, 1967 (W. P. Act XVII of 1967)
Ss. 42, 44 & 45Mutation registerEntry inHeld : Entry by virtue of mutation to be no basis of title. [P. 396]fi Mr. Ghulam Muhammad Bhatti, Advocate for Petitioners. Ch. Muhammad Hasan, Advocate for Respondents (I to 7). Date of hearing : 26-3-1984. judgment Facts giving rise to this petition under Article 98 of 1962 Constitution are that one Mst. Jhando widow of Miroo, a displaced person from East Punjab, on migration to Pakistan, settled in Chak No. 72/GB, Tehsil and District Lyallpur. She filed a claim in respect of agricultural property left by her deceased husband in India . Her claim was verified for 34 kanals 1I mar/as and the land in dispute was allotted and confirmed to her in satis faction of her claim. 2. Mst. Jhando aforesaid died in 1960 and, on her death, mutation No. 193 of her inheritance was sanctioned on 26-6-1960 by Assistant Collector. II Grade, Lyallpur , treating her as a limited owner. By means of this mutation, l/4th of the property in dispute was given to Mst. Jhando or her bein and the remaining 3/4th was given to Musbtaq Abroad and () Petitioners being the only heirs of M^if.Jhanda deceased, the revenue authorities should have decided the mutation of inheri tance in their favour. (c) In view of tbe Supreme Court judgment in Msl. Zainab v. Raji and others (P L D 1960 S. C 229), jurisdiction of civil Courts to entertain declaratory suit for establishing title to evacuee lands abandoned in India by a refugee claiming to own such lands was barred and as such tbe impugned order of .the Additional Coms missioner directing the parties to go to civil Court for decision of their rights was clearly against the law declared by the Supreme Court of Pakistan. 6. I have heard the leartsd counsel fo r the parties. Learned counsel for'the petitioners, in his submissions, has reiterated tbe aforementioned contentions. 7. As regards the contention raised on the authority of the aforemen tioned Fill Bench judgment of this Court in Sher Mohammad's case that Mst. hando was the absolute owner of the property in dispute, sufljce it to observe that the view taken in Full Bench judgment of this Court was over ruled by he Supreme Court of Pakistan in Additional Settlement Commis sioner (Land) Sargodha v Muhammad Sbafi and others (P. L. D. 1971 S. C. 791) herein it was held that tbe property allotted to a female in lieu of the limited estate abandoned b> her in India would, on her death, devolve on the heirs of the last male owner of the property left in India and not on her own heirs. This being the se tied law, even if the petitioners are accepted as the only legal heirs of Mst. Jhando they cannot inherit the entire pro perty in dispute which according to law declared by the Supreme Court would devolve on the heirs of Miroo deceased. Petitioners will, therefore, only inherit the share which Mst. Jhando will get in the estate of her deceased husband Petitioners, however, also claim to be the collateral. of Miroo which relationship appears to be disputed Be that as it may, in order to become entitled to a share in the inheritance of Miroo deceased, both the parties shall have to establish their relationship with him in a proper Court of law as directed by the learned Additional Commissioner. It is significant that the case remained pending before the revenue authori ties for a out 7 years and in spite of the elaborate enquiry held in mutation proceedings in which bulk of evidence was recorded, question of the afore said relationship of the parties could not be decided. It was in this back ground that the Additional Commissioner came to the conclusion that the civil Court was the best forum for deciding this question and parties were, therefore, directed to seek their remedy in the civil Court. Even otherwise, question as to who amongst the parties is entitled to inherit the property in dispute and to what extent is basically a question of title which can only be decided by the civil Courts. Revenue authorities, in the proceedings for sanctioning mutation, do not act as arbiters of the rights of the parties Needless to emphasise that a decision in mutation proceedings is not £ decision as to the title of the parties. Revenue authorities sanction the mutation to keep their own record in order and up-to-date. Reference in this behalf may be made to Mohammad Iqbal v. S. A. M. Khan, Member, Board of Revenue (P. L. D. 1970 Lahore ^14). in Nirman Singh v. Rudra trtap Narain Singh (A. 1. R. 1,926 Privy O.uncil.aoO), it was held by theJudicial Committee that mutation proceedings are not judicial proceeding! in which title to and proprietary rights in immovable property are deter mined but that "they are much more of the nature of fiscal nquiries '' ' instituted in the interest of the State for the purpose of ascertaining whic pi the several claimants for the occupation of certain denomination immovable property may be put into occupation of it with greater confi dence that the revenue for it will be paid". Same view was expressed in Mst. Rasulao Bibi v. IN and Lai (A. I. R. 1930 Allahabad 521) and was relied on in Ram Sarup Rai v. Charitter Rai (A. I. R. 1927 Allahabad 338). An entry by virtue of the mutation is, therefore, not the basis of title. Thus, viewed from whatever angle, direction of the Additional Commissioner and the learned Member, Board of Revenue that the parties should get their dispute settled in a civil Court proceeds on correct legal premises and is not open to exception on any plane. 8. As regards the petitioners' contention based on Mst. Zainfb v. Mst Raji and others (P. L. D 1^60 S. C. 229) it may be noted that the view expressed therein was applicable to the case of inheritance of a /"~ deceased 'right holder' which term was interpreted in Syed Abdnr Rashid v Pakistan (P. L D 1 62 S C 42) to mean a 'right bolder' who had died before putting in his claim. Mst Jhando was a confirmed allottee and not a deceased 'right holder'. In this view of the matter, civil Courts are not barred from deciding the question of succession to the estate of a confirmed allottee and it has been so held in Mst Ghulam Fatima v. Mohammad Hu'sain and 5 others (P. L. J. 1977 S. C. 4). Thus, the impugned decision of Additional Commissioner directing the parties to go to the civil Court for settlement of their dispute cannot be said to be barred by any law. Contention of the learned counsel for the petitioners in this regard is misconceived. 9. As held above, none of the contentions raised by the learned counsel for the petitioners has any substance. This writ tition is there fore, without any merit and the same is accordingly dismissed but there will be no order as to costs in the circumstances of this Petition dismissed.
PT J 1985 Lahore 396 PT J 1985 Lahore 396 Present: muhammad aslam mian, J SHAMSHAD ALIPetitioner versus DISTRICT JUDGE, Gujranwala and 2 OthersRespondents Writ Petition No. 3144 of 1982, decided on 30-12-1984. (i) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)-
Ss. 13 & 15 read with Provisional Constitution Order, 1981 (CMLA's 1 of 1981)Art. 9 and Constitution of Pakistan , 1973 Art. 189Eviction orderChallenge toWrit petitionCompetency ofDistrict Judge, while sustaining order of eviction of petitioner, not applying principle declared by Supreme CourtHeld : Exercise of jurisdiction by District Judge not to be regarded as without legal defect. (P. 400J0 (It) Urbaa tent Restriction Ordinance, 1959 (#. P, Ord. VI of 1959)- -Sis. 13 (2) (vi) & (3) (a) (ii) & 15 read with Provisional Constitu tion Order, 1981 (CMLA's 1 of 1981)-Art. 9EvictionRecon struction of building -Ground ofLandlord applying for eviction of tenant on ground of his bonafide requiring shop for his son after demolishing and reconstructing same by adding shop already in his possesion:Shop in possession of landlord foupd suitable by District Judge for use of his son - Contradiction between case as set up in application and through evidence and sanctioned plan also noticed by Irjigh CourtHeld : Finding of District -fudge sustaining ej'Ctmert order on ground of, reconstruction after his having reversed finding on son's need to be without lawful authority and of no legal effect [P. 399{^ PLD1961 SC28r«/. (fit) Constitution of Pakistan , 1973
Art. 189-See : Urban Rent Restrietron (Ordinance, 1959 (W.P. Pri. VI of !959)-Ss. 13 & 15. [P. 406]B (If) Provisional Constitution Order, 1981 (CMLA's 11981)
Art. 9See : Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of|959)-Ss. 13 & 15 and 13 (2) (vi)i& (3) (a) (ii)'$ i5. [Pp. 399 & 400J4 & B Mr. S.-Af. Nasim, Advocate,for Petitioner. Mr. Muhammad Ismail Qureshi, Advocate for Respondent No. .3. Date of hearing : 11-12-1984. judgment The petitioner by this writ petition seeks a declaration to the effect that an order dated 7-7-1982 passed in appeal from an ejectment order, by the learned District Judge, Gujranwala (respondent No. J), is without lawful authority and of no legal effect. 2. Respondent No. 3 filed an ejectment petition against the petitioner for his eviction from shop No. B-XXHI 4S-39 Nowshera Road, Gujranwala. The eviction of the petitioner was aought on the ground that the petitioner was a defaulter as to the rent for a period of three years ; the an of respondent No. 3 namely Shahzad Nadeern after having completed is education was un-cmploved who wanted to run bis own business in the shop in question, so the shop was needed in good faith for fine son of respondent No. 3. It was also averred that the disputed shop was in flis-raafif and a smalj one which was insufficient to cater the need of the son of respondent No. 3, so respondent No. 3 for ths need.pf his son after demolishing the shop in question wanted to add the same to the adjacent shop already in possession of respondent No; 3, by way of re-construction for which respondent No. 3 had secured a sanctioned plan from the Municipal Corporation concerned. 3. The petitioner resisted the application by controverting each ground. 4 The learned Rent Controller after his findings that the petitioner was not J| defaulter, the landlord/respondjent No. ?, required the disputed examination fiere is on a difFerent plan, there JS no necessity of referring to the decis.ons so cited. Hoover , the learned counsel ha$ <J^<> the competence of the writ petition on the ground that there are involved nd ; jurisdiction^ defects. He has also submitted that the decision of ; the Supreme Court v/i P.L.D. 1961 SC 28, was delivered in a civil suit and' the h,w applicable was Karachi Rent Restriction Act, 95; in which, there was no penal provision, as is in the Punjab Urban Rent Restriction Ordinance, 1959 which is to the effect that a landlord after taking possession of the building or Jhe land, failing to construct the premises within the period specified there, is lible to be punished with an imprison ment for a term which mayi-exteiM,,to six months or with fine or with both. '- 10. The decision of the Supreme Court if, no doabt under section 10 (2) of the repealed arachi ent Restriction Act, the language of the r. levant provision being in part Materia with the language,,of. Section 13 U) (vi) of the Punjan Urban Rent estriction Ordinance; 195-V the said dictum is applicable with all the force. As to the rgument of the learned counsel for respondent No. 3 that the bsence of 1 the penal provi sion in the Karachi Rent Restriction Act, makes the case as hot applicable to the present one, is misconceived. It has been epeatedly held that irrespective to the penal clause of the Ordinance, 1959, the case must- be proved independently on the ground which is set up in the jectmetit petition and that will, not absolve a person from proving the same simply because a penal provision is there, 11. The learned District Judge as a result of his discussion .did observe that respondent No. 3 was in possession of a suiubie s'h >p for the use of his son, therefore, one of the conditions entitling a landlord to g i vacated a non-residential property on account or bona fide personal requirement had not been proved. The case of respondent No 3 in his ejectment petition as well as in the evidence was that of reconstucting the building by amalgamating twr shops for providing his son to run the business whereas the sanctioned plan Ex. A/1 sh >wsd that two shops were to be reconstructed at the proposed site apart from other structure. As has been pointed out by the learned counsel for the petitioner, there is obviously a contradiction bet ween the case as sent up in the application and through the evidence and the sanctioned plan since the plea taken is for absorbing two shoo to make with as oneuo cater the need of the son. In view of the above cited decision of the Supreme Court the requirement for reconstruction altogether fails being interlinked, with the failure to establish the require ment of the shop tor the use of the son of respondent No 3 before the District Judge, hence the finding of the learned D t strict Judge sustaining the ejectment order on the ground of re-construction atter having reversed the finding on the son's need, is without lawful authority and of no legal 12, As to the competence of the writ petition suffice it to say that the principles and the law declared by the Supreme Court is binding on all the other Courts in Pakistan as is obvious from Article 189 of rhe Constitution of the Islamic Republic of Pakistan, 1973 which says that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle Of law be bind- |ing on all other Courts in Pakistan and since a principle declared by tne upreine Court in the above cited decision has not been applied by the (learned District Judge, therefore, the exercise of jurisdiction by him cannot be regarded as without a legal defect. Hence, the writ petition is accepted with no order as to costs. . Petition accepted.
PLJ 1985 Lahore 400 PLJ 1985 Lahore 400 PrtSerit : Got zarin kiani, J SARDAR MUHAMMAD-Petitioner versus DIRECTOR OlF EDUCATION (SCHOOLS); Directorate of Education, Gujranwala and Another Respondents Writ Petition No. 2210 of 1984, decided on 20-10-if84. - Services- Ex-servicemen Quota in civil service and age-relaxation for Government reserving certain percentage in civil service for ex-service men and also granting (them) relaxation in age limit Petitioner already absorbed in civil service by availing benefit of relaxation Subsequently again petitioner applying for post of Secondary School Teacher out of quota reserved for ex-servicemen and claiming agerelaxation on account of Army Service Held : Ex-servicemen being not competent to avail relaxation in age limit at different times arid stages, purpose (of relevant notification) to be satisfied fence petitioner given employment out 6f reserved quota for ex-servicemen and on basis of relaxation in age limit. [P. 4Q2]A cLchulam Qadir, Advocate for Petitioner. Mr, S. M. Zubair, A. A. G. for Respondents. Date of hearing : 20-10-1984. order' fcardar Muhammad, .an ex-sefviceman, presently Elementary School Teacher, serving in Education Department, Province of Punjab , seeks appointment to the post of Secondary School Teacher on the basis of age relaxation available to ex-servicemen in the light of certain Notifications/ instructions issued by the Government of Punjab. Present constitutional petition arises in the following circumstances : Sardar Muhammad was born on 3-3-1937, joined service in Pakistan Army on 10-9-1955 in the capacity of a sepoy. He was discharged from the service being surplus to t'ue establishment on 1-7-1963. His services were recalled during the emergency, on ! -12-1971. He was relieved finally on 25-5-1972. Petitioner was absorbed in civil employment in the capacity of Elementary School Teacher on 2?-iO-1972, when he was of 35 years 7 months and 24 days against the maximum age limit of 30 years; During all these yean the petitioner has been busy in improving upon his educational qualifications and now holds a degree in B. A. B. Ed. from the Punjab University. 2. Applications were invited to fill in certain vacancies of Secondary School Teacher in Gujrahwala Division. Maximum age limit for the post in respect of male candidates was fixed at 30 years relaxable for a further period of 5 years in suitable circumstances. Petitioner as an ex-serviceman applied for the post of Secondary School Teacher out of quota reserved for ex-servicemen and claimed age relaxation on account of Army service,. He was interviewed and succeeded to be at S. No. 5 of the merit list. However, be was not considered on the quota reserved for ex-servicemen and was dropped. His representation for reconsideration of his case in the reserved quota did not yield any fruitful results and was finally turned down on 11-3-i 984 rttfe page 45 of the file. 3. Petitioner at the time of interview had reached the age of 45 years 10 months and 22 days. He claimed relaxation for 1 years, 10 months and 22 days on account of the period spent in the service of Pakistan Army, and the period spent between his release and absorption in civil employment. Benefit so claimed was not extended which brought the petitioner to the High Court praying for the quashment of the impugned decision in constitu tional jurisdiction. Report called for has been submitted by the officialrespondent. Mr. S. M Zubair, learned A. A. G. also appeared of his own to assist the Court. Petition came up for motion hearing on 15-10-191. Learned counsel have been heard at length. Learned counsel for the peti tioner extended that the petitioner as v an ex-serviceman was entitled to rel xation of age limit on account of service in the Army and the period thereafter falling in between his release from the Army to the date of his re-employment in Civil Service as Elementary School Teacher. The period when so calculated came to 17 years 10 months. If this period is excluded from consideration, his case fell well within the maximum age limit fixed for the post of Secondary School Teacher. Reliance was placed on Noti fication da te d 1-6-1976 issued by government of Punjab in its Services, General Administration and Information Department. Relevant para reads, as under : "Vide S&GAD's notification, dated 1st April, 1976, maximum age limit prescribed for a post should be relaxed in favour of an exserviceman to the extent of service rendered by him in the Defence Forces plus the interval between the date of his release and the date of his re-employment in a Civil Department." 4. It is contended that the official-respondents have been, by putting wrong construction on this part of the notification refused the appointment to the petitioner, which he, otherwise well deserved on merits. Mr. S. Nl. Zubair, A. A. G. in reply submitted that petitioner has, once availed of the age /relaxation on account of being an ex-serviceman and thus stood absorbed in the civil employment. He, no longer, can be considered on a quota reserved for ex-servicemen and granted the age relaxation for second time. He, at the time of interview, was & civilian employee and had to compete, as such,-with other candidates. At the time of interview, the petitioner is stated to have crossed 45 years of age, and as such had bsen nghtiy ignored from onsideration by the reipondents In thii behalf instructions in letter Mejtno N0; I82/D-I4 (W)/ 82 Yated 9-2-1982 Ircnv the Deputy Secretary, Government of Pakistan, Ministry of Defence, Rawalpindi. It is further pointed out that the pttitioner's ase was referred to Director Public Instruction (Schools) Punjab who also did not favour the construction sought to be placed upon the Government Notificat ion by the petitioner.- 5. Learned counsel for the petitioner also submitted that he had been singled out while the other ex-servfeemen had been granted employment, by Government. , He has referred to certain names whivh nave been listed in Annexute 'G' of the present fife. 6. Government, ifl its anxiety, and rightly so, with a view to improve the economic well being of , ex-servicemen and to reward them tor their services rendered by them in the sacred defence of the country reserved certain percentage in the Civil Service for them and for . that end in view also granted relaxation in the age limit That is laudable But, then, once an ex-serviceman, has been obsorbed in Civil Service, and has availed of the benefit of relaxation, the matter should end. The maximum age fur E. S. T. was 30 years. Petitioner was much above the age limit fixea at the time of his earlier'employment. H« was considered on i he reserved quota for ex-' servicejoen and given appointment. Thereafter he was a Civilian employee. It is not the spirit and purport of the notification that ex-serviceman 'can ivail of,the relaxation in age limit at different times and stages exhausting jart and keep, the remaining in store to be utilized when the occasion arose. urpos^ seems to have been satisfied when once the petitioner was given embloyment out of reserved quota for ex-service.nen and on the basis of relaxation in age limit. 1 can well appreciate the petitioner's efforts and anxiety to step up ladder and improve his lot, but I am constrained to observe, instruction/notifications relied upon do not lend any help and advance the case ot the petitioner in this behalf. In this view of the matter 1 fee) the petition disclose no serious merit. It fails and is dismissed in litntnf. , Petition dismissed.
PLJ 1985 Lahore 402 PLJ 1985 Lahore 402 Got zarin k.iaw, J WAlllMUHAMMAD- Appellant versus DUR MUHAMMAD etc.Respondents FAO No. 185 of 1976, heard on 1.10-1984. (I) Civil Procedure Code1908 (V of 1908) O.XLI, Rr. 23 & 24Appellate CourtRemand of case byHeld: Remand not to be ordered lightly by appellate court particularly when evidence for application of law be already availableHeld farther: Unnecessary remands adding to agony of litigant public and'involving consumption of unnecessary expense and wastage (to W avoided) [P. 404]^ PLJ 1984 Lahore 338 & PLJ 1984 Lahore 243 rtf. (ii) Civil Procedure Code, 1908 (V of 1>08) -- O-XLI, R. 24-Appellate Court Remand of case byA-Entire ; material (already) available on record -r Held: Court to decide question itself finally and to avoid remand in order to shorten htigation and to save people from avoidable expense and mental agony. [Pi 4Q5].4 Malik Abdul Aziz, Advocate for Appellant. Ch. Nazir Ahmad Khan Raiui, Advocate for Respondent. Dateof bearing: MO- 1984 JUDGMENT This appeal is' directed against the remand orde? dated 6-5-1976 passed by Mr. Jacob Issac. learned Additional District Judge, Lahore, setting aside judgment and decree dated 3-10-1974 of learned Civil Judge 'Lahore disimissing plaintiff Dur uhammad's suit for declaration and perpetual injunction. 2. Facts giving rise to the controversy briefly stated ate" that 'State land measuring 275 kanals and 5 marlas was allotted to Wali Muhammad son of Nizam ud-Din for a period of 20 years under Well Scheme in the year 195^-60 Possession of the land was delivered to the said allottee on 20-12-1963. Perigd of allotment was to be reckoned from the date of delivery of possession. On the basis of an agreemtnt dated 17-12-64, En PI, Dur Muhammad son of Bahadur Ali" instituted a '.pivfl suit for declaration that he wa"s entitled to 3/8th share in the suit land and was Jo lawfil possess/on of land comprised in khasra No. 1687 to 1689, 1691 to 1698, 1700, 1702 and 1703 and further prayed for perpetual injunction, as consequential relief, restraining defendant No. \ (yValLMuhamniad allottee) from interfering with his possession. The shares of the parties were given in para 3 of the plaint. Civil suit was resisted by Wali M ihammad who filed a written statement, wherein he denied the execution -^ --.>, of the above-noted agreement and its legal validity under Section 19 df the Colonization of Government Lands (Punjab) Act 1912. Learned Civ.il Judge proceeded to trial on the following issues : L Whether this court has jurisdiction to try this suit. 2. Whether this suit is maintainable. || 3. Whether the plaintiff has locus-standi. 3. 'Parties produced evidence of their own choice in support of the above stated issues.' Jurisdiction of Civil Court was found to exist. , Learned Civil Judge found 'Issue' no. 2 and 3 agaiflst thq plaimifF .anil dismissed the suit en 30-10-1974. Section 19 of the Colonization Of Government Lands ( Punjab ) Act 1912 was found to operate as a bar to the transfer to any right in the State land. Against the dismissal order, Dur Muhammad preferred an appeal under Section 96 of the Code of Civil Procedure in the Court -of learned District Judge, Lahore . This appeal was entrusted for decision and disposal to learned Additional District Judge of the same District. Vide order dated 6-5-76, appeal was accepted and »uit was remanded to the trial court. After discussing the import of Section 19 of the Colonization of Government Lands ( Punjab ) Act 1912. the Cow observed : ; 'This is a case where the appellant is in possession of the land in dispute. This is a case where the point as to whether ection 19 of the said Act is applicable to the present suit or not is yet to be determined and has not been fully hrashed out by the lower court. r x In view of the above discussion, I observe that this is a fit case for remand. I, accordingly, accept the appeal and set aside the order of the lower court and I remand the case with the direction that the lower court should decide the case afresh in accordance with law and in the light of my above observation". Rentaid order has been assailed in appeal before this Gourt. The appeal was admitted to hearing on $--9-76 and has come up today for final hearing in the presence of the learned counsel for the parties. 4. I have heard learned counsel for the parties and examined the record requisitioned fron> the trial Court. Learned counsel for the appel lant has contended that the learned appel late court has proceeded to remand the suit for re-decision jto the trial court in the absence of any real legal or factual necsssity existing for it under law. Material evidence was already onfMeinclytdingthetermsofagreem3ntEx.pt. Such being the case, the appellate^ court was bouna to decide the matter oh the available material as required by the provisions of Order 41 rule 24 of the Code of Civil Procedure, Ha has relied upon Noor Muhammad v. District Judge, Babawalpur, and two others (PLJ 1984 Lahore 338) and Rana Kburshtd Ahnad v Additional District Judge Rawalpindi and two others (PLJ 1984 Lahore 243) to conted that the remand order passed by learned Additional District Judgs is in disregard of the plain provisfons of Order 41 rules 23, 23A and 24 of the Code of Civil Procedure and the pronouncements of the superjor courts. It was contended that all the material evidence which was needed for resolution of the controversy in the light of the provisions of Section 19 of the Colonization of G3vernment Lands (Punjab) Act 1912. was already on record and the p->int requiring decision was the appication of Section 19 of Punjab Act V of 1912. This could have been decided by learned Additional District Judge. Learned counsel for the respondent, however, in reply asserted that the remand order was amply justified in the circumstances of the case and need not be interfered. I Remand is not to be .ordered lightly by the appellate court, more so, {when the evidence for the application of law is already available. Unjnecessary remands, besides adding to the agony of of litigant public involve fconsuraption of unncessary expense and wastage of public time. There was no insuperable legal obstacle, existing in the way of learned appellate Court, to pronounce finally upon the application of the provisions of Section 19 of the above noted Act to the facts of the tease under considera tion anl dscide the aooeal finally. It has been observed in tb,e case of Noor Mohammad v. District Judge (PLJ 1984 Lahore 338) ''The law is well settled on the point that if an Appellate court finds that any question has been wrongly decided by a tower court it should, instead of lightly remanding the case to the lower court decide other questions involved in case also, if there is sufficient material on the record for its so doing and finally decide the case at its own level with a view to saving the parties from another round of litigation". Siniilar observation were made by this court in Rana Khurshid Ahmad v. Additional District Judge, Rawalpindi and two others (PLJ 1984 Lahore 243). It has been repeatedly held by the superior courts that in order! to shorten litigation and save people from avoidable expense and mentalL agony, remands should be avoided and the courts of correction should! decide the questions itself finally where the entire material is available on| record. Order 41 rule 24 of the Code of Civil Procedure reads : "24 Where evidence on record sufficient, appellate court may ietenaiae case finally. ---Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds." 5. crystal A bare look at the rule read with the connected rules, makes it clear that the impugned order of remand was passed in improper exercise of appellate jurisdiction. Learned Additional District Judge was booad to and should have decided the controversy by himself without callicg-inud of the learned trial court on the question of application of Section 19 of Punjab Act V of 1912. I, therefore, feel no hesitation in agretiag who the contention of learned counsel for the appellant. Appeal is accepted, impugned order of remand dated 3-5-1976 is set aside. The case n remitted to learned District Judge. Kasur for decision afresh, on the available material. The learned District Judge may either decide the appeal himself or may entrust it for disposal to any other Additional District Judge in the same District. Parties are directed to appear before learned District Judge, Kasur on 15-10-1^84 Efforts be made to decide tlte appeal preferably within two months from the receipt of the records bytbe appellate court. Office is directed to send down the records withoat least delay. No orders as to costs. Appeal accepted.
PLJ 1985 Lahore 405 PLJ 1985 Lahore 405 Present : irshad hasan khan, J Sheikh MUHAMMAD RAMZAN-Petitioner versus MUHAMMAD ASGHAR ALI-Respondent Civil Revision No. 452-D of 1981, heard on 13-11-1983 ( Civ Procedure Code, 1908 (V of 1908) - -S. 115 High Court Revisional jurisdiction ofExercise of HU : High Court in exercise of its revjsional jurisdiction to interfere only where grave injustice or hardship to result on account of non-interference (and not to correct every irregularity). . [P. 408]fl (ii) Civil Procedure Code, 1908 (V of 1908)-
O XXIII, R 1SuitWithdrawal ofHeld: Rationale behindO. XX11I, R. 1 to be to prevent technicalities from defeating justice. [P. 408]C (Hi) Civil Procedure Code, 1905 (V of 1908)- rrO XXIM, R 1 and Ss 107 &' 115 - SuitWithdrawal of at appellate StageOrder ofChallenge toAdditional District Judge in exercise of bis discretion under O XXIII; R.I, CPC allowing oral petition for withdrawal of suit with liberty to file fresh one on cogent reasonsHeld Mere fact of plaintiff having taken no step for withdrawal of suit at trial stage not to ipso facto render impugned order illegal within ambit of S 115, CPC. [P. 408]/< AIR 1946 Lahore 419 ; PLD i959 Lahore 535 ; PLD 1967 Lahore 531 & PLD 1965 SC 634 re/. Mr. Amjad Hussain Syed, Advocate for Petitioner. Ch. Muhammad Hasan, Advocate for Reipondent. Date of hearing : 13-11-1983. JODGMBNT this revision petition arises out of the judgment dated 11-1-1981 of the learned Additional District Judge, Sheikhupuru, wbereby the respondent was Allowed to withdraw the suit under Order XXIII, rule 1 C. P. C. with permission to file afresh by setting aside the judgment and decree dated 3-9-1980 of the trial Court dismissing the plaintiff/defendant's suit. 2. Facts relevant for disoosal of this revision petition, as per record, are tha M ihammad Afghan All brought a suit for declaration to the effect that he is owner in possession of the disputed land with consequential relief bv way of permanent injunction restraining the defendant/petitioner from alienating the land to anvbody else. Originally the respondent bad averred in the plaint that he was owner in possession of 28 kanals of land out of square No. 45 killas No 14, 15, 16 and 17/1 situated in village Jewanpura Kolan. Tehsil and District Sheikhupura and the registered sale deed dated 26-9-1960 purrorted to be executed by the plaintiff/respondent in favour of the defendant/petitioner was fictitious and foreed. The defen dant/petitioner resisted th- suit and filed written statement wherein it was inter alia averred that on 26-9-1966 the plaintiff/respondent had executed a sale ded in respect of the suit land in his favour in consideration of Rs. 3000,00, therefore, the suit was liable to be dismissed 3. as many as 10 issues were framed out of the pleadings of the parties. The first seven issues were technical in nature. Thoss were decided against the defendant/petitioner. The following issues on merits were struck down : "8, Whether the sale deed dated 29-6-1960 is false, fictitious based upou fraud and therefore, unlawful and void ? OPP. 9, Whether the plaintiff is owner of the suit land ? OPP," Lahore 429] and Bahadur Khan v. Sultan (PLD 1967 Lahore 531), to contend that the Appellate Court in exercise of its discretion under Order XXIII Rule 1 (2) (bj CPC was fully competent to allow the oral petition if the matter was covered by the expression "other sufficient grounds". In the alternative an oral petition was made for the amendment of the plaint. He next submitted that the mistake committed in the plaint was not inten tional but because of the fact that the defendant/petitioner had himself before the Revenue Officer in appeal mentioned the date of sale deed as 296-1960. This was also the date mentioned in the remand order dated 27-8-1977 of the Collector. The trial Court framed no issue on this point. falls and is hereby dismissed, but Petition dismissed. 6. Having considered the submissions of learned counsel for the parties. I am inclined to hold that the authorities cited at the Bar by learned counsel for tlu petitioner relate to the scope of expression "formal defect" as used in Order XXIII, Rule 1 (a) C. P. C. Here there is 'no dispute that the alleged defect was not covered by the words "formal defect". The question arises as to whether the case in hand is covered by the expression "other sufficient grounds" as used in clause (b) ibid. 1 follow with respect the dictum laid down in Gurprit Singh's case that the words "other sufficient grounds" as used in Order XXI11, Rule 1 (2)' (b) C. P. C. are not ejusdem generis with the words "formal defect" referred to in Rule 1 (2) (a) of Order XXIII C. P. C. and are much wider in signification and can cover all those cases wliich appear to Court as affording such ground. Thfs expression is certainly not restricted to the grounds relatable to "formal defect". The same vrw was taken in Municipal Committee, Cbakwal v. Fateb Khan (PLD 1959 Lahore 535) and Bahadur Khan's case. In Gurprit Singh's Case, it was also held that the leave to withdraw from the suit with liberty to institute a fresh suit in respect of the same subject matter even at the stage of appeal can be granted. Reference may also be made to Ismail v. Fida AH (PLD 1965 S. C. 634), wherein on the oral prayer of learned counsel for the
laintiff, the Supreme Court granted leave for withdrawal of the suit with jermissibn to file a fresh suit. In the instant case, learned Additional Disrict Judge in the exercise of his discretion under Order 23 rule I C. P. C. allowed the oral petition for withdrawal of the suit with liberty to file fresh suit on cogent reasons. The mere fact that the plaintiff/respondent took no step for withdrawal of the suit at the trial stage and invoked the provisions of Order XXIII rule 1 C. P. C. for the first time at the appellate stage, would not ipso facto render the impugned order illegal within the ambit of Section 115 C. P. C. It is well settled that the Court in the exercise of revisional jurisdiction will not interfere to correct every irregularity, but only where grave injustice or hardship will result on account of non-inter ference. It will be unjust to deprive plaintiff/respondent from filing a fresh suit to establish his valuable proprietary rights. The rationale behind Order XXIII, rttle 1 C. P. C. is to prevent technalities from defeating justice. Even if it is assumed that the said provisions are not attracted here, the plaint can be allowed to be amended under Order VI, rule 17, Code of Civil Procedure, for the purpose of determing the real question in contro versy at any stage. This is, therefore, not a fit case for interference in revision. In view of the above, the petition there shall be no order as to costs. (TQM) Bail Accept
PLJ 1985 Lahore 414 PLJ 1985 Lahore 414 [ Rawalpindi Bench] Present: qurban sadiq ikram, J RIAZ AHMADPetitioner versus General (Retd.) MUHAMMAD ANWAR KHAN and 6 Others- Respondents Writ Petition No. 558 of 1984, decided on 27-11-1984. (i) Punjab Tenancy Act, 1887 (XVI of U87)- S. 77 -Landlord and tenantRelationship betweenDetermina tion of question of- Revenue courtJurisdiction ofOwnership of property by respondents not denied by petitionerHeld : Revenue courts to be within their jurisdiction to adjudicate upon relationship of landlord and tenant between parties. [P. 416]<4 PLJ 1983 SC 546 distinguished. (ii) Writ Jurisdiction- Courts of competent jurisdictionOrders ofInterference with in constitutional jurisdictionImpugned orders passed by courts of competent jurisdictionNo illegality, infirmity or any other material irregularity pointed outHeld : Orders passed by courts having jurisdiction to decide matter not to be interfered 'With by High Court to exercise of its constitutional jurisdictionProvisional Constitution Order, 1981 (CMLA's 1 of 1981)-Art. 9. [P. 4l7]B PLJ 1975 SC 60 & PLJ 198) SC 660 rel. (iii) Provisional Constitution Order 1981 (CMLA's 1 of 1981) -Art. 9-See: Writ jurisdiction. [P. 417]B Mr. Bashir Ahmad Ansari, Advocate for Petitioner. Date of hearing : 27-11-1984. order This is a Constitutional petition by Riaz Ahmad seeking to challenge the orders of Member Board of Revenue, Lahore dated 7-11 84 in R. O. R. Nos. 2267/84, 2268/84 and 2269/84 alongwith the orders dated 17-3-84 passed by Additional Commissioner (Revenue, RawOpindi Division, Rawalpindi in Appeals Nos. 1/84,2/84 and 3/84. The orders of learned Collector dated 26-12-83 in three separate ejectment suits have also been challenged in this petition. 2. The facts necessary for the disposal of this petition are that Brig : (Rtd ) Mohammad 4/zal Khan brought an ejectment suit regarding Khasra
o. 2778 measuring 19 kanals ; Mst. Durr e-Shahwar and Mst. Abida Sarfraz brought another suit for ejectment from land bearing Kbasra Nos. 27"8/3 and 2795/1 measuring \%kanals\5 marlas whereas Major General (Rtd.) Mohammad Anwar Khan brought the third suit for ejectment from land bearing Khasra No. 2778 measuring 19 kanals. All these three suits were filed against Riaz Ahmad (petitioner herein) on the plea that the said Riaz Abroad was tenant-at-will under them ; that he was not cultivating the suit land; and that he failed to pay the produce rent (Saiai) to them. All these suits were resisted by Riaz Ahmad present petitioner. It was pleaded by him that he was in possession of the suit land in his own right and continuously for a period of over 12 years and that he was not the tenant-at-will under the plaintiffs in three suits. The learned Collector vide orders dated 26-12 88 accepted the suits and directed the ejectment of Riaz Ahmad. It was held by him that Riaz Ahmad was a tenant-at-will under the respective plaintiffs and had failed to pay the Batai to them. The contentions of Riaz Ahmad in the written statements were rejected. Riaz Ahmad, defendant in the suits went up in appeal before the learned Additional Commissioner (Revenue) Rawalpindi Division, Rawalpindi . These appeals were dismissed on 17-7-84. He went up to the Board of Revenue by filing three separate revision petitions which were dismissed on 7-11-84 by one judgment. The petitioner has assailed the above orders through this petition. 3. It is contended by the learned counsel for the petitioner that the respondent Nos. I to 4 who had filed three separate »mts for ejectment ofRiaz Ahmad petitioner, ad in their application So. 2i/81 dated 12 9-81 (Annex 'S'), admitted that Riaz Ahmad was not their tenant and that he was in adverse possession of the land earing Ctusra Nos. 2778 and 2/95. In this application which was filed by respondents Nos. 1 to 4 through their attorney Haroon Sarfraz, it was prayed that the entries in the evenue record showing Riaz Ahmad as a tenant should bs corrected. It was, therefore, argued by th; leaned counsel that the respondents could not now base their laim in the Revenue Courts on the allegation that Riaz Ahmad was their tenant. It was next contended by the learned counsel that a civil suit etween the parties to determine th« question of adverse possession wa« already pending in a civil C>urt and as such, the Revenue Courts should not have ecided the question of title in the ejectment proceedings In this behalf, reliance was placed on a judgment reported as Helmut Ullah v All Muhammad and nother PLJ 1963 SC S46). It was next contended by the learned counsel that the taste fact that the name of Riaz Ahmad petitioner is recorded as a tenant at willin the evenue record would not mean that he was a tenant under respondents Mos. I to 4 specially when there was no agreement between the parties creating enancy. It was further contended in this behalf that there was no entry in Roznamchi of Patwari to show that Riaz Ahmad entered in possession? of this land as enant under respondents Nos. i to 4. It was argued by the learned counsel that the general practice of the revenue staff is that every person in possession of a and, not recorded as owner in the ownership column, is recorded as tenant at-witi in support of this, he placed reliance on Mst. Bhagh Bhari v. at. hagta (P L O. 1954 Lahore 365) and Sohawa Singh v. K.esar Singh and otheif (A. I. R. 1932 Lahore 586). 4. I have considered the above arguments of the learned counsel and have also gone through the record of this case. I have also gone through the judgments cited by the learned counsel at the Bar. 5. A perusal of application No. 21/81 dated 12-9-81 (Annex -S») would indkate that Major General Mohammad Anwar Khan etc. had filed an Rehmat Ullah is of no help to the present petitioner. In this view of the matter, even if there was no specific agreement between the parties creating tenancy in favour of Riaz Ahmad petitioner, then also the entries in revenue record showing Riaz Ahmad as tenant-at-will under Major General Mohmmad Anwar etc coupled with the decree of produce rent against Riaz Ahmad is enough to prove that he \vas a tenant-at-will under Major General Mohammad Anwar etc. the owners. The last point urged by the learned counsel for the petitioner was regarding the practice of the revenue staff to eater every person, not entered in Khjna Matqiot in the column meant for Khana Kaasht. I have gone through the judgments relied upon by the learned counsel. There is no dispute about the ratio in the cited judgments. It is correct that every person who is not in possession of a land as owner is entered in Khana Kaahsht, but this argument is of no avail to the petitioner because not only the name of the petitioner is mentioned in the revenue record as tenant under Major General Mohammad Anwar etc, owners but there is a decree of produce rent also against him. In this view of the matter, it is clear that Riaz Ahmad was a tenant under Major General Mohammad Anwar etc. owners. No other point was urged by the learned counsel for the petitioner. The revenue Courts who passed the impugned orders were the courts competent to pass the impugned orders The learned counsel has not been able to point out any illegality or any other material irregu B larity in the impugned orders The impugned orders having been passed by Courts having jurisdiction to decide the matter, cannot be interfered with in exercise of Constitutional jurisdiction. R;liancs far this view is respect fully placed on two judgments reported as Mahimmid Ha?ain,Maoir and' others v Sikaodar and others (PL. J. 1974 S.C oO) and Mohammad Sharif and another v. Mohammad Afzai Sohail etc. (t>.L J 1951 S.C. 660). 7. In view of the above discussion, I find no merits in this petition which is accordingly dismissed in liming. Petition dismissed.
PLJ 1985 Lahore 417 PLJ 1985 Lahore 417 Present: Zu mahmood mirza, J Rana IQBAL and OthersPetitioners versus MUHAMMAD DIN and OthersRespondents Writ Petition No. 1962 of 1984, decided on 17-9-1984. (i) ConsolidatioD of Holdings Ordinance, 1960 (W. P. Ord VI of 1960)-
Ss. 10, II & 13 read with Provisional Constitution Order, 1981 (CMLA's 1 of I9<$1) Art. 9-Consolidation SchemeAllotment of area inHigh CourtInterference withHeld : Allotment of area being exclusive function of Consolidation Authorities, no interference to be made by High Court with that function in its constitu tional jurisdiction. [P. 4I8M (ii) Provisional Constitution Order, 1981 (CMLA's, 1 of 1981) Art. 9See : Consolidation of Holdings Ordinance, 1960 (W. P. Ord. VI of 1960)-Si. 10, 11 & 13. [P. Malik Talib Hussain A wan, Advocate for Petitioners. Date of hearing : 17-9-1984. order Consolidation scheme of village Dailera, Tehsil Shakargarh District Sialkot was confirmed by the Consolidation Offissr on .JO 9 1979. On the complaint of certain land owners of the village. Additional Commissioner (Cons) called fresh proposals from the Collector (Cons.) and on the basis thereof made some amendrnsats in the khatas of the parties by order dated 25-1-1981. Abdul Ghani, father of the petitioner's challenged these amendments by filing an appeal against the order of Consolidation Officer dated 30-9 1979. Collector (Cons.) dismissed the appeal by his order dated 30-3-1981 with the observation that the proposals submitted by him earlier were approved by the Additional Commissioner and khatas amended accordingly vide bis order dated 25-i-1981, and that the appellant if aggriev ed with the amendments made by the learned Additional Commissioner may seek his remedy in the next higher Court i.e. Board of Revenue. Abdul Ghani filed a further appeal which, too, was dismissed on merits by the learned Additional Commissioner (Cons.) by his order dated 15 6-1982. Abdul Ghani then filed a revision petition in the Board of Revenue claim ing therein that he may be restored his previous area around abadi deh. Learned Member (Cons.) Board of Revenue took up for hearing together revision petiti' n of Abdul Ghani as aUo revision petition filed by Abdul Ghani's sister Ms'. Bibi. Learned Member (Cons) found that "the record shows that the petitioners have been suitably accommodated in Khasra Nos. 671; 673), 1238, 1259 and 1260. These khasra numbers are not only closer to abadi deh than their previous Khasra numbers but are in excess of the area held by them around abadi deh before consolidation." Learned Member also took the view that a right-holder is not entitled to claim each and every khasra number held by him before consolidation. With these findings, the learned Member dismissed both the revision petitions by his order dated 2-10-1983. 2. Petitioners who are successors-in-interest of Abdul Ghani have invoked constitutional jurisdiction of this Court to challenge the aforesaid order of the learned Member (Cons.) Board ot Revenue and other Consoli dation Authorities. 3. The only point urged by the learned counsel for the petitioners was that the area given to the petitioners in consolidation was far away from abadi deh and he findings of the learned Member (C^ns ) Board of Revenue and the learned Additional Commissioner that the sams was closer to the abadi deh were incorrect. Though the question raised by the learned ounsel was concluded by concurrent finding of fact recorded by the Tribunals of exclusive urisdiction, 1 gave a number of opportunities to the learned counsel to substantiate his point with reference to the record. Learned courAel has stated today that he is unable to produce any record to show that the Khasra numbers given to the petitioners in consolidation were not near abadi deh. Thus the finding recorded by the learned Mirabsr (Cons.) Board of Revenue is unexceotionable. It was also rightly held by the learned Member that in consolidation operations, a right-holder is not entitled to claim the area held by hi n before consolidation. Even othsr- |jvise. allotment of area is the exclusive function of Consolidation Autbo- Alrities and this Court in its Constitutional Jurisdiction cannot interfere with fthe exercise of that function. 4. Reference may be maile in "Ghulam Qadir v. Mealier Board of Revenue" (1970 iCMR 292) wherein it was held that "the question as to which Killa number should have been given to the parties was within the exclusive jurisdiction of the Revenue Authorities. The High Court could not sit in judgment against the order of the Revenue Authorities in such matters". Similar view was expressed in "Afst. Ham Bibi and 8 others v. Member (Consolidation), Board of Revenue" (1982 CLC 2i09) wherein it was observed that "furthermore, the allocation of Kbasra Nos. in consoli dation is entirely within the competence of the consolidation authorities and no interference can be made through the constitutional jurisdiction of this Court". In view of what has been stated above, this writ petition has no merit and the sams is, therefore, dismissed in limine. Petition dismissed.
PLJ 1985 Lahore 419 PLJ 1985 Lahore 419 Present : muhammad afzal lone, J MUHAMMAD KAZAM (deceased; represented by Legal heirs- Appellant versus Afst. JANAT BIBIRespondent Regular Second Appeal No. 724 of 1975, decided on 10-7-1985. (I) Transfer of Property Act, 182 (IV of 1882) Ss. I & 2Territory to which Act not appliedApplicability of general principles (of Act to)Held : General principles (of Act) in accord with rules of justice, equity and good conscience to be followed in territories to which Act not made applicableTechnical provisions of Act, however, not to be obligatory. fP- 42j]A (if) Transfer of Property Act, 1882 (IV of 1882)
-S. 58 (c) ProvisoMortgage by conditional »aleProof of Territories to which Act hot appliedApplicability of proviso to tlause (c) of S. 58Condition for repurchase not incorporated in document affecting saleHeld : Proviso [to clause (c) of S. 58] dealing with proof of mortgage being no rule of justice, equity and good conscience, (such provision not to be followed in territories where Act not made applicable)Transfer in question established as mortgage by conditional saleHeld : Proviso by itself not to stand in way of appellant [P. 423] B 1946 PLR 517 ref. (iii) Registration Act, 1908 (XVI of 1908)
Ss. 17, 49 & 50DocumentRegistration ofEffect of Regis tered document creating rights in property of value of more than Rs. 100/- Held : nregistered document not to bo allowed to affect terms of such (registered) document. (P. 426]£ (!t) Interpretation of deeds -Deeds-pContemporaneous execution ofEffect ofHeld : Mire execution of two documents (between sams parties) on sams date not necessarily to establish inter-dependence of such deeds. [P. 424JO 12 Allahabad 387 & AIR 1916 PC 49 ref. (t) Interpretation of deeds
Transaction-Nature ofDetermination ofHeld : Mere in adequacy of consideration by itself not to be safe guide for adjudica ting nature of transaction. P.426\F (ri) Interpretation of deeds TransactionParties toIntention ofHeld : Intention of parties to document to furnish positive test for finding out real character of transactionSuch intention, however, must essentially to be gathered from language adopted in document viewed in light of surrounding circumstancesHeld further : Speculative opinion must be avoided in case of words of document being clear and unam biguousOral evidence (also) to be admissible to extent that in what mannr language of document to be related to existing facts. [P. 4<;3]C Ch. Muhammad Arif, Advocate for Appellant. Syed'Abdul Asim Jafry, Advocate for Respondent, Date of hearing : 27-3-1985. judgment The suit giving rise to this R.S A. was filed by Muhammad Kazam appellant now represented by his legal representatives for declaration, that having paid the mortgage money, he was the owner in possession of the house in dispute, alternately he prayed for a decree for redemption of the mortgage on payment of Rs. 2030/- or any other amount determined by the Court. The learned trial Court on 26-6-19 74 passe J a preliminary decree for redemption of the suit property, subject to payment of Rs. 2000/- by the appellant. The respondent's first appeal against the preliminary decree, was, however, accepted by the learned District Judge, Sneikhupura, by his judgment and decree dated 9-9 1975. H- declared the respondent as absolute owner of the property and dismissed the suit with no order as to costs, throughout. Hence this second appeal by the plaintiff. 2. The appellant's case, is, that he borrowed a sum of Rs. 2000/- from the respondent's husband namely Muhammad Iqbal who died before commencement of this litigation. According to him the deceased was of the view that mortgage would give rise to usury and, therefore, asked for scribing a sale deed, with the condition to execute an agreement to re-transfer the property to the appellant against the same amount. The plaint proceeds, that the two ducuments were completed ; the deceased got the mortgage deed executed in favour of his wife and a period of five years was fixed for redemption thereof ; the appellant remained in possession of the house, as a tenant, paid the rent to the respondent, and also the sum of Rs. 2QOO/-, The appellant claimed that after having liquidated hit be a mortgage by conditional sale unless the condition for re-transfer is embodied in the document which affects the sale. The characterization of the transaction by the appellant, as a mortgage by conditional sale on the basis of a separate document, contemplating re-transfer of the property, was, thus, also seriously assailed. 8. The learned trial Court over-ruled both the contentions. It maintained that the agreement was executed on 15th March 1952 and there was an attempt to alter the date from 15th to 16th. As regards the second argument, it held that the Transfer of Property Act does not apply to the Punjab Province; the proviso lays down a rigid rule and such a technical provision of the Act, the Court is not bound to enforce, 9. The learned District Judge depricated the trial Court's reliance on the appellant's oral evidence and maintained that the intention of the parties, reflected by he language of the instruments Ex. P. I and R. 1, clearly demonstrated an out-right sale to the respondent. He specifically referred to R 1 to point out that this agreement was executed on 16 th March but a crude attempt was made to alter this date as 15th March. He was of the view, that the agreements stipulated a duration of five years for re-p-irchase of the property by the appellant which expired on 16-3-1957 and after that time limit, the instrument stood cancelled. The fact that the sale deed did not make mention of any re-sale, also influenced the decision of the learned District Judge in treating the sale as an absolute ne. He further declined to subscribe to the view that at the relevant time the property was worth much more than Rs. 2000/ and recorded a finding that when tbs transaction was made, the price of the house could not be more than Rs. 2000/-. In arriving at this finding he was mindful of the rise, registered in the value of the immovable properties during the interregnum between 1951 and the year 1972 when the appellant led his evidence. 10. The main question for determination, in this appeal is as to what is the real nature of the transaction between the parties ; whether the two documents Ex. P. 1 and Ex. R. 1 constitute an absolute sale of the house to the respodent with the condition to re-convey it to the appellant at the same price or establish a mortgage with conditional sale. There is an obvious distinction between the two types of transacions. In the first case there does not exist any relationship of borrower and creditor, between the parties and by virtue of the sale deed, the title in the property is absolutely passed on to the vendee and agreement to re-transfer it to the vendor does not cast any limuatation on bis ownership rights. The second instance represents an arrangement for borrowing money, much below the value of the property which is tendered as security for re-payment of the loan. If it is not paid the creditor can fall back on the security. When the relationship of mortgagor and the mortgagee is created the ostensible owner of the property retains an interest in it, inasmuch as the sale deed and the agreement for re-purchase, make out inter-dependent constitutents of the same transaction. It may be observed, that where the two documents, one contemplating transfer and the other an agreement for re-transfer of the property, purport to be contemporaneous, the determination of the real character of the transaction is not without difficulty. It was'with a view to narrow down the wide field of controversy regarding the nature of the transaction qua mortgage by conditional sale, embodied in two or more than The instrument expressly ordains that if the vendee defaulted, in proceeding with the sale, within the stipulated time, the bargain would be deemed to have been rescinded. The third document is a rent deed, executed by the appellant, to get the house in dispute, on rent from the respondent at the rate of Rs. 20/- per month. The duration of the tenancy is 11 months commencing from the 1st April 1952. 13. The two Courts below have recorded conflicting findings on the question of date of execution of Ex. R. 1. The date of the execution of the sale deed and the agreement for re-sale, may have some bearing on the contemporaneous nature of the two documents. The issue, therefore, needs to be attended to. From the perusal of the three documents, I, however, find that the stamp papers on which these are scribed, were purchased on 15-3-1952. There are clear indications that these were written on 16-3-1952. But the figure 16 has been inter-polated and an attempt made to convert it into 15, to ante-date the documents. This tampering is analogous in- character and is clearly visible in the three documents. No reason for such tampering is ascertainable from the record. There is another important factor relevant to the date of the execution of the documents, which escaped the notice of the Courts below. The three documents havr besn scribed by the same petition-writer namely Muhammad Arshud Tariq and the two marginal witnesses thereof are also the same. The combination of all these factors does not leave me in any manner of doubt that the three documents were executed contempora neously. 14. But the contemporaneous execution, is not the real test of the sameness of the transaction. It must yield to the intention of the parlies, discoverable from the words of the instruments. The language of Ex. P. I unequivocally demonstrates that the sale in favour of the respo dent, was, not subject to any covenant but an absolute one. It also does not make mention of any borrowing nor of any stipulation enjoining upon the respondent to execute some other instrument, warranting re-conveyance of the property to the appellant. The respondent throughout, in this docu ment has been described as "vendee". Significantly, it was registered on 7-4-1952 and according to the Sub-Registrar's endorsement made thereon, the appellant admitted the contents of the document and ceived from Muhammad Iqbal balance of the sale price amounting to Rs. 1500/-. The contents of Ex. P. 1 are a clear manifestation of the fact that by virtue of the sale deed, the title to the property was intended to be passed on to the vendee absolutely. The second document Ex. R. 1 is in fact a unilateral writing by the respondent agreeing to re-iransfer the house to the appellant. Though it is in his favour but he is not a signatory thereto and thus not a party to the same. oes not disclose any nexus with the sale deed. As a matter of fact the contents of the two documents which evidently do not suffer from any ambiguity, amply signify that the two independent transactions have been affected thereby. 15. Mere execution of Ex. P. land R. 1, on the same date, is no ground for holding that a mortgage by conditional sale has been created, [here is authority for the proposition that such contemporaneous execution [does not necessarily establish the inter-dependence of the two documents. In this connection, 1 may re fere to Bbagnan Sahai v Bbagwan Dip (12 Allahabad 387). This was a case in which the plaintiffs predecessor-inintcrest sold away some immovable property to one Ganga Din and 18. There is another legal hurdle to travel beyond the contents of sale deed Ex. P. 1 The transfer of the property to the respondent is exhibited by a registered document which upon its terms is an absolute sale. The appellant seeks to utilize the un-registered document Ex. R. I to show that the transaction covered by Ex P. 1., though ostensibly a sale, is, in reality a mortgage by conditional sale. In other words the object of Ex. R.I is to modify and limit the terms of Ex. P. I. An un registered document cannot be allowed to affect the terms of a registered document which creates rights in a property of the value of more than R$. 19. On behalf of the appellant it has also been emphasised that the lvalue of the house was much in excess of Rs 2000/- and an aid is sought Ifrom the rule that transfer of the property for an unduly low price, is, an ^attribute of the mortgage by conditional sale. But this test needs to be [applied very cautiously because mere inadequacy of consideration by itself is not a safe guide for adjudicating the nature of the transaction No doubt the learned Civil Judge has maintained that there is a marked disparity between the market value and the sale price but this finding is rested on the sole ground that the appellant's evidence remained un-rebutted. It is to be seen that the burden to prove the actual value of the property at the time of execution of Ex. P. 1, lay on the appellant. I do not think that the depositions of the two witnesses examined by him, in this respect, inspire confidence. Further, the reasoning which prevailed with the learned District Judge cannot be brushed aside easily. Anyhow, the case has primarily to be decided on the basis of the contents of the documents, which as already held falsify the appellant. 20. Looking from various angles, I see no merit in this appeal. It is dismissed with costs and the judgment and decree of the learned first Appellate Court are upheld but somewhat for different reason. (TQM) Appeal dismissed.
PLJ 1985 Lahore 426 [DB] PLJ 1985 Lahore 426 [DB] Pretent: abdul shaklrul salam & aboul W a heed, JJ S. MARUF AHMADALI, AdvocateAppellant versus PUNJAB PUBLIC SERVICE COMMISSION, Lahore through its Chairman and AnotherRespondents I C A No. 115 of 1985, heard on 30-9-1985. 0) Punjab Civil Service (Judicial Branch) Roles, 1962-
Appendix toCompulsory subjectsNote underConstruction ofGrace marksAward ofClaim regardingAmended note under compulsory subjects in appendix to Civil Service (Judicial Branch) Rules authorising Public Service Commission to award five grace marks to deserving candidates in one or two papers Sach grant of grace marks, however not entitling grantee to have better position in merit list than other successful candidates (who have been granted grace marks)Grant of grace marks invariably exercis- < ed (in case) Held : Aggrieved person not to be discriminated against and to be shown grace done to similarly placed or at least his case (for grant of grace marks) to be considered (by Com mission). [P. 430]^ (ii) Punjtb Civil Service (Jodicitl Branch) Rales, 1962
Appendix toCompulsory subjectsNote underConstruction ofGrace marks Grant of -Limitation onGrant of grace marks not entitling granttee to have better position in merit list than other successful candidates who have not been granted such marksGrant of grace marks, however, not made conditional upon getting 50 per cent marks in aggregate Such percentage fixed for purpose of calling for interviewHeld : Condition of one provision not to be added to other provision (in case of latter provision having its own conditions). [P. 430] B (Hi) Pnnjab Civil Service (Jbdicial Branch) Rules, 1962
Appendix toNote under compulsory subject read with Constitu tion of Pi kistan. 973Art. 199 and Law Reforms Ordinance, 1972 (XII of 1972)S 3 race marksGrant of-Failure to consider representationChallenge toRepresentation of appellant for (grant of) one grace mark (in langugager paper) not onsidered (by Punjab Public Service Commission) because of his aggregate being less than 20 per cent (i.e. only 49.87%) in case)Condition of having 50% in ggregate, however, not part of provision relating to grant of grace marksReleeant provision also safeguarding rights of other successful candidates (who have not een granted grace marks) Held : Matter to be remitted to Public Service Commission to consider case of appellant for grant of one grace mark. [P. 43I]C Mr ffoor Muhammad Chandia, Advocate for Appellant. Mr. Khalil Ramdey, Addl. Advocate General for Respondent. Date of hearing : 30-9-1985. judgment Abdul Shaknrul Salam, J. Aopellant appeared in a cornoetitive examination for recruitment to toe posts of Civil Judges held in February, 1985 He was informed vide memo No. DDE CJ 8V1-PPSC/1082-EX dated 23-4-1985, para. 2 that "you have failed to qualify in the written portion of the above noted examination held in February, 1985. The marks obtained by you in each subject are as under : Compulsory Subjects. Maximum marks. Marks obtained. 1. English General and English 100 45 Essay. 2. Urdu General and Urdu 100 32 Essay. 3. General Knowledge inclu- 100 56 ding Everyday Science. 4. Civil Law- 1 100 54 taken and whereat if it Js less than half, then it will be ignored". He has also referred to the Rules of the Board of Intermediate and Secondary Education, Multan for Secondary School Certificate and Intermediate Examination wherein it is stated in rule 15 that "fraction in'thc conces sional marks shall be counted as one". He also referred to the Explana tion to role 6 of the Punjab Local Council (Removal of Chairman, Vice Chairman or Member) Rules, 1982 wherein it as laid down that "In com puting~majority for the purposes of these Rules, the fraction if any, shall be deemed a a whole" Learned counsel made the precise submissions on our request though he had withdrawn the writ petition on behalf of bis client for some reason. The learned Addl. Advocate General submitted that the general method of reckoning is of no relevance. Where-ever the law of the land provided that a fraction be taken as a unit it expressly pro vided so and where no such provision is made, the reckoning cannot be as contended by Mr. C. M. Latif Rawn, Advocate. 4. The learned Additional Advocate General in opposition to the appeal submitted that the appellant could not be given one grace mark in Urdu paper because his ggregate was less than 5(>%. Grace marks can only be given in individual paper or papers if the aggregate is 50% or more He submitted that in any case grace marks given in individual papers cannot be counted in calculating the aggregate. 5. Question of rounding off of figures is neither helpful to the appel lant because of his having not obtained requisite number of marks in an individual paper nor germane to the decision of the appeal as it involves another point which will be dealt with next. Therefore, no decision is required to be made on the issue. 6. In the case in hand, the precise point is that the appellant has failed in one of the eight subjects in which he aopeared, by one mirk. The subject was Urdu General and Urdu Essay. He got 32 marks instead of 33 required for passing the examination. The case of the appellant id based on the provision which reads as follows : "No candidate shall be summoned for viva voce and psychological tests unless be has obtained at least 33 per cent marks in each indi vidual written paper nd 0 per cent marks in the aggregate of the written portion, of the examination. Five grace marks may however be given to really deserving candidates in one or two papers provided that such grant of grace marks shall not entitle the grantee to have a better position in the merit list than those successful candidates who have not been granted any grace marks ". Learned counsel for the appellant submitted that the aforesaid provides for two situations. The first is that no candidate shall be summoned for viva voce examination if he obtains less than 33 per cent marks in each indivi dual written paper and 50 per cent marks in the aggregate of the written papers. The second is that five grace marks can be given to a deserving candidate in one or two papers provided that such grant of grace marks shall not entitle the grantee to have a better position in the merit list than those successful candidates who have not been granted any grace marks". The contention of the learned counsel for the appellant is that the two provisions provide for two different eventualities. His case is covered by the second provision. In reply, the learned Addl Advocate eneral submitted that a person may be given grace mark in one or two papers upto five marks if the aggregate of total marks is SO per cent or more. He cannot be iven grace marks if the aggregate is less than 50 per cent nor the grace marks granted can be reckoned in totalling up the aggregate. If this be - not permissible, the ppellant would still be in-eligible for being called^for interview for having less than 50 per cent aggregate. " 7. This appeal was heard alongwith three other petitions in which question of rounding off was involved. Under the interim orders of the Court, all the four candidates were interviewed. The result has been shown. The other three have failed in the interview. Only appellant has passed the viva voce examination. The three petitions have, therefore, been withdrawn. 8. From the provision quoted above, it is quite clear that two situations are envisaged. The first is that a candidate shall not be summoned for viva voce examination if he had not obtained 33 per cent marks in individual papers plus SO per cent in the aggregate. If he had on the other band requisite marks, he shall be called for viva voce. The provision deals with candidate's ineligibility or his right to be summoned. It has nothing to do with the power of the Commission. The provision is independent and distinct. The second provision is that grace marks may be given by the Commission in one or two papers. But it is subject to the ondition tnat the grant shall not entitle the candidate to be buetter than the one who m«| not got grace marks. This pro/ision is for the Commission. An idea occurred whether grace to be conferred by a body can be claimed by an individual. But when it is provided for in statutory rule or authority is conferred and it is laid down that it shall not affect others and when it is invariably exercised, a person concerned can ask that he be not discriminat ed against and be shown the same grace which is done to similarly placed or at least his case considered. In the case in hand, the appellant was not held entitled to one grace mark in a language paper on the ground that his aggregate was less than SO per cent Therefore, it has to be seen whether the ground is valid. Now, referring back to the provision, it will be recapitulated that the grant of grace marks is not conditional upon getting per cent marks in the aggregate That percentage is for another purpose of calling for interview. The limitation on grant of grace marks is that the B grantee shall not be better off than others who had got marks on their own. Condition of one provision cannot be added to another provision when the latter has its own conditions. The appellant was asking for one grace mark in a language papsr. Exact or accurate marking to a number may be possible in a paper like Mathematics or Physics. But there is always a possibility of one mark being more or less in a language paper. That may be the reason that the Commission is allowed to give grace marks upto five. Now, if the appellant is given one grace mark in the Urdu language paper, his aggregate will be 50 per cent. The contention of the learned Additional Advocate General that the grant of one grace mark in the paper cannot be counted in reckoning the aggregate is really not very gracious. What is the use of showing grace if it has not to have full effect ? One cannot be gracious and then with-hold part of the benefit of the grace. Moreover, if (here it grant of grace marks but those marks are not to be added to the total and reflected therein, it would be bad arithmetic because the total of all the marks including grace marks would be more but shown less. The contention of the learned Additional Advocate General on departmental practice and reliance on Nazir Ahmad v. Pakistan & II others (PLD 1970 S. C. 443) in the order under appeal is not quite apt. That is when rights of others are or are likely to be disturbed. In the case in hand, the relevant provision has already safeguarded the rights of others by lay ing down that grant of grace marks will not affect others who had got marks on their own. Therefore, in all the circumstances of the case sfnce the representation of the appellant for one grace mark was not considered because of his aggregage being less than 50% /. e. only 49.87%, and the condition of having 50% in the aggregate being not the part of the provi sion relating to grant of grace mark but of another provision, the case is remitted to the learned Public Service Commission to consider his case for grant of one grace mark in the language pa.net and if it graciously grants one grace mark that shall be counted making the appellant eligible for viva coce examination, which incidentally he has passed. The appeal is accordingly allowed but, in the circumstances, parties are left to bear their own costs. (TQM) Appeal allowed.
0PLJ 1985 Peshawar 1 0PLJ 1985 Peshawar 1 Present: fasal elahi k.han, J MOHIBULLAH and AnotherPetitioners versus GOVERNMENT OP PAKISTAN through Secretary Defence Department, Islamabad and 42 OthersRespondents Civil Revision No. 3 of 1982, decided on 14-3-1984. (i) Civil Procedure Code (V of 1908) _O. IX, R. 6 Ex pane proceedingsOrder ofDecreeGrant of CourtDuty ofHeld : It being duty of court to go through contents of plaint and material placed before it in arriving at ten tative findings on allegations made in plaint, court not to grant decree to plaintiffs in ex pane proceedings as of grace or without any reason. [P. 4]D (fi) Citil Procedure Code (V of 1908) .--O IX, R. 6 Ex parte proceedingOrder ofEffect ofDecree Grant ofCourtDuty ofDocumentary evidence in shape of revenue record available to court negativing claim made in plaint Plaintiff failing to lead ex parte evidence to dislodge such entries in existence against his interestHeld : Court not to be obliged to decree suit merely on ground of proceedings before it bemg ex parte. [P. 4}E (iii) Civil Procedure Code (V of 1908)
O. IX, R. 6 Ex parte proceedings ofOrder of-Court Duty of Held : Before proceeding ex pane, Court to satisfy itself regard ing all parties to suit having been properly served or duly represented [P. 4]A (if) Civil Procedure Code (V of 1908)- - O. IX, R. 6 Ex parte proceedingsOrder ofRepresentative of partyPresence ofHeld : While making presence of representative or authorised agent of parly, coyrt to, specifically mention name of such person and to verify and place on record document of authorisation. fP 4]B CO Civil Procedure Code (V of 1908)-
O. IX, R. 13 & O. V, R. 20 £x parts decreeSetting aside of Substituted serviceOrder ofTrial court committing illegality in ordering service of defendant through publication without fulfilment of requirements of lawNo material on record warranting action Uken by Court except oral assertion made by plaintiffSummons issued to defendant also not received back in courtHeld : Order letting aside ex pane decree to be legally justified and unexception able in circumstance of case. [P 4]C Mr. Abdul Bari Khan, Advocate for Petitioner. Mr. Raza A Khan, Deputy Attorney General for Respondents. Date of hearing : 14-3-1984. judgment This revision petition by Mohibuilah and others is directed against the order of the learned Civil Judge 1st Class, Peshawar dated 1st of December, 1981, whereby exports decree passed against the respondents and in favour of the petitioners on 24tn of January. 1976, was set aside. 2. Facts of the case briefly stated are that Mohibuilah and his brother Said Pehman instituted the present suit in the Court of Senior Civil Judge, Peshawar on 19-2-1976 against Government of Pakistan through Secretary, Defence Department, Islamabad, and others for declaration that plaintiffs are the owners in possession of land measuring 293 kanalu 4 marlas situated in village Regi Lalam, Tehsil Peshawar decided in the heading of the plaint. Further prayer has been made to declare the entries in the revenue record regarding the ownership of the defendants to be illegal and ineffective on their rights. In the body or tne plaint it was alleged that Said Ali son of Shah Nawaz was the occupancy tenant of the suit khasra number who sold the same in favour of Mir Alam Khan son of Ashraf Khan, predecessor-ininterest of the plaintiff, through a registered sale deed dated 3lst March, b83 ; that on coming into force of the N. W F. P. Tenancy Act, 1950, the occupancy tenancy rights were converted into full ownership whereby plaintiff-petitioner became full owner of 2/3 share of the suit property while defendant Nos. 4 to 44 are the owners of the remaining l/3rd share. As no effect was allegedly given to registered sale deed in the revenue record the original occupancy tenants and their successors have been retain ed in the revenue record. The entry of ownership and occupancy rights in the name of defendant No 1 was also challenged to be without any justi fication. An ex pane decree was granted to the plaintiff on 24-1-1978 by the learned Civil Judge without recording any evidence on the failure of the defendant to appear on the date fixed though they were served through publication in daily 'Mashriq'. It was on 22-4-1978 that an application was made by defendant Nos. 1 and 2 namely the Government of Pakistan through Secretary, Ministry of Defence, and Military Estate Officer Peshawar, for setting aside of the ex parte decree dated 24-1 78 passed against them referred to above. This application was resisted by the decree holder but the learned Civil Judge after recording evidence of the parties accepted the tatne set aside the ex pane decree vide the impugned order dated 1-12-1981, Dissatisfied with the said order plaintiff-petitioners have come to this Court for setting aside the said order and restoration of the ex pane decree. 3. Mr. Abdul Bari Khan, Advocate for the petitioners and Syed Ibne Ali, Additional Advocate-General for the Government present and heard. Record of the case also perused. 4. The only question which requires determination in this case ii whether the Government of Pakistan and Military Estate Officer, Defen dants 1 and 2 respectively, ware duly served in the suit before passing the ex pane decree against them. The learned trial Judge on consideration of the evidence of the parties recordej on the applici'ioa has come to the conclusion that service was not effected on the defendants for the date fixed in the case, hence has set aside the ex parte decree In order to appreciate the contentions of the learned counsel for he parties on the point, I deem it necessary to refer to the various summons issued in th suit which are available on the file On 16-9-1976 summons were ordered to be issued to the defendants for 30-7-1976. Summon issued in the name of defendant No. 2 i.e. Military E-tate Officer was returned with a note that a copy of the summon has been handed over to the concerned clerk, however, there is no endorsement by the clerk concerned of having received the summon. As on 30th of July 176 the Court was not working case was adjourned to 20-10-1976 and on that date presence of the epre sentative of defendant No. 2 has been mark:d but there appears no letter of authority on the file nor the name of the representative is recorded who had allegedly made an appearance in Court Tnere is, however, nothing on the record to show hat summon was issued in the name of defendant No. 1. On the subsequent date i.e. 9-2-1977 it has been mentioned in the order sheet that defendant No 1 has been personally served but was absent, therefore, ex parte proceeding's ware ordered against the defandants. Subsequently this case was transferred from the Court of Senior Civil Judge 1st Class, Peshawar , on receipt of the file on 9-6-1977, the learned Civil Judge ordered that summon be issued to the defendants for 11-7-1977. On that date too he Presiding Officer was on leave and the case was adjourned to 24-9- 1977 but neither vhs presence of the parties nor their learned ounsel is marked. On the adjourned hearing i.e. 24-9-1977 the presence of the plaintiff's counsel was noted but fresh summons were ordered to be issued to the defendants for 29-10-1977. On the date fixed for substituted service through publication in ths News paper the Presiding Officer was not working and so the case was adjourned to 24-6-1978, however, the presence of either of the parties or their learned counsel has not been recorded and on the adjourned hearing ths ex partt decree wa passed. 6. On going through the various order-sheets it can be safely gather ed therefrom that the entire proceeding in the case were conducted in an irregular and unsatisfactory manner, though considerable agricultural land (recorded in the ownership of the Government was involved in it. It was jthe duty of the Court before proceeding ex parts to have satisfy itself that jail parties to the suit have been property served or duly represented. It has nureiy been mentioned in the order-sheet dated 20-10-1976 that repre sentative of defendant No. 2 was present in Court, however, no document of authorisation is available on the record nor the name of the represen tative allegedly authorised by defendant No. 2 is mentioned therein. It was incumbent on the Court while marking the presence of a represenfa- B tive or authorised agent of a party to have specifically mentioned the name of such person, to have yerifised the document of authorisation and to have placed it on the,record. Furthermore, on several occasions on account of absence of the Presiding Officer the case was adjourned, however, while adjourning the case neither the presence of the parties and their l-aracd counsel have been recorded nor is it mentioned that paracha peshi was issued to them which practice too is unwarranted. The learned trial Judge also committed illegality in ordering service of the defendant through publication without fulfilment of the requirements of law. Before ordering service by publication in the newspaper it is required under Order 5 Rule 20 that Court must satisfy itself through the material available before it that service could not be effected through ordinary mode of service. In the case in hand there is no material to warrant the action taken by the learned Judge' The order is based on the oral assertion made by the plaintiffs in Court which practice is highly regrettable Even the summon issued to the defendant had not been received back in Court when the order for service through publication was passed. For the reasons stated above the order setting aside the ex parts decree was legally justiSed and unexceptional in the circumstances of the case, 1, It may also be pointed out that the suit land was entered in the ownership of the Government in the column of ownership in the revenue re cord filed along-vith the plaint while in the columu of cultivation the same was shown in possession of Executive Engineer North-western Railway. Inspite of th s documentary evidence, to which presumption of truth is attached and without recording any other evidence the impugned decree declaring the plaintiffs to be the sole owners was passed relying on the provision of Land Reform Ordinance, 1972. It has been observed for and again that Courts are not to grant decree to the plaintiffs in ex parte pro ceedings of grade and without reason and realm, it is still the duty of the Court to go through the contents of the plaint, the material placed before it in arriving at a tentantive findings on the allegations made in the plaint. It becomes more so necessary when documentary evidence in the shape of revenue record is available to the Court which negatives the claim made in the plaint. In such like cases when the plaintiff fails to lead ex parte evidence to dislodge such entries in existence against his interest the Court is not obliged to decree the suit merely on the ground that proceedings before it are ex parte. This revision petition, therefore, fails which is dis missed with no order as to costs. (TQM) Petition dismissed.
PLJ PLJ !?85 Peshawar 5 [Dera Ismail Khan Circuit Bench] Present : fazal ilahi khan, J FAIZ MUHAMMAD Petitioner versus SHAISTA KHAN and AnotherRespondents Civil Revision No. !-D of 1980, decided on 8-10-1984. (i) Csfil Procedure Code (V of 1908) -- O. XXXII, R. 3 Minor defendant -Guardian ad litem of Appointment of -No specific order for appointing guardian of minor made Minor's interest however, looked after by his father and no prejudice apparently caused to himHeld : Defect, if any in not pas sing formal order for appointment of guardian not to vitiate trial of case. [P. 1}A AIR 1934Oudh 171 ; AIR 1940 Patna 59 ; PLJ 1982 Qustta 14 Si PLJ 1978 AJK (SC) 84 ref. (ii) Cwil Procedure Code (V of 1908) - -- O, XXXH, R. 3 Minor defendant Guardian ad litem of Ap pointment of Application lor appointment of guardian ad litem thougn accepted oy court, no fcrina. order passed thereon -Minor remain. ng properly represented throughout in proceedings resulting m compromise decree Such compromise arrived at by fattier (guardian) of minor not challenged as collusive or fraudulent -Held : No pre judice appearing to nave been caused, decree m question granted by trial court on basis of such compromise to warrant no interference [P. Mr. H. Saadullah Khan, Advocate for Petitioner. Mr. S. Khurshia Alam Sherazi, Advocate for Respondent Date of hearing : 19-3-1984. judgment The following facts are relevant for the decision of this revision petition by the plamufl-pre-emptor against the judgment and decree of the learned Additional District Judge dated 9-9-19/9, whereby the decree passed in his favour oy trie learned Civil Judge dated 24-6-1978 was set aside and case remanded to the trial Court with the direction for its disposal in accordance with law after allowing the then minor to defend his case. 2. Sale of land measuring two knnals 10 marlas i.e. 50/1518 share out of total land measuring 75 kanals 18 marlas bearing Khasra No. 22»7; 1220 situated in village Baist Kbel, District Bannu in favour of Shaista Khan and his son Akbar Ah through .Mutation No. 9&S2 attested on 10-5-1976 was pre-empted by Faiz Muhammad petitioner herein basing his superior right of pre-mption on co sharership, participation in amenties od contiguity by bringing the present suit in the Court of Civil Judge Lakki on 9-5-1977. The sale consideration of Rs. 3000/- entered in the mutation of sale was alleged to be fictitious while the actual sale consideration was stated to be Rs. 200/- fixed and paid to the vendor. 3. On 24-6-1977, the date fixed for the appearance of the parties, both the defendant-vendees appeared in Court. As defendant No. 2 Akbar Ali appeared to be minor, an application was made by the plaintiff for the appointm-nt of Shaista (Chan defendant No. 1, father of defendant No. 2. as his guardian which was placed on the file. Memo, of addresses was also placed on the file on his behalf as well as on behalf of his minor son as his guardian on 24-6-1977 and the case was adjourned for filing of written statement to 12-7-1977. On 12-7-77 written statement was filed on behalf of both the defendants wherein several legal and factual objec tions were raised to the maintainability of the suit, it was alleged in the written statement that the land in suit was purchased for the construction of residential houses and that after the purchase they have constructed houses over it and have since been residing in it. The learned trial Judge on the pleadings of the parties framed as many as 6 issues for the decision of the case on merits. Special power of attorney on behalf of defendant No. 2 in favour of defendant No. 1 duly attested by Notary Public was also placed on file on 19-7-1977. During the proceeding both the parties made an application before the Court on 2-2-1978, wherein they claimed to have compromised the matter on the following terms and conditions : (;') that the suit is to be decreed after determination of the market value of the suit property ; (ii) that the assessment of the improvements made over the suit land and the market value is to be worked out by Maqbool Anwar Tehsildar as an Arbitrator. Statement of the plaintiff and defendant No 1 was recorded in Court, however, subsequently instead of Arbitrator Maqbool Anwar was ask^d to act as a commissioner rather than an Arbitrator. On the receipt of the report of the commissioner plaintiff's suit was decreed by the trial Court vide its order dated 24-6-1978, on payment of Rs. 3.000/-. 4. On appeals filed by both the defendants, the learned Appellate Court set aside the judgment and decree of the learned Civil Judge and remanded the case with an observation that defendant No. 1 was not a duly appointed guardian of Akbar Alt minor defendant, therefore, he was not provided proper opportunity to defend his case, however, at the time of passing of order of remand it was held that Akbar Ali defendant No. 2 hid since attained majority. 5. Mr. Saadullah Khan Mian Khel, Advocate for the petitioner and Mr. fChurshid Alam Snerazi, Advocate for respondents resent and heard. 6. Ths learned counsel for the petitioner contended that an applica tion for the appointment of guardian of the minor defendant as made at the earliest and the Court after entertaining it placed it on the file. There after both the defendants filed their joint written statement resisting the suit of the plaintiff on identical grounds. Unfortunately there had been no evidence on the record to show the exact age of defendant No. 2 at the relevant time. However, as has been observed by the learned Additional District Judge defendant No. 2 attained majority during the pendency of t&? firit appeal. Even during the pendency of the suit defendant No. 2 It was further observed that :In a case where the minor has been properly represented, the procedure laid down in Order XXXII, C.P.C. may not be complied with in its itrict sense, in proceedings under Ordinance VI of 1959. and non-compliance of Order XXXII, rules 4 (3) and 3 (4) not fata! to the proceedings." The observation was based on a judgment reported in 30 I.AC 182 (PC) (Mst Bibi Wfth'an v. Banfcc Behari Persitad Singh; and Ramchandar Singh and another v B. Gopi Krishna Dass and others (A.I.R. 1375 Patna 260). Reference has aiso been made to Masbi Khan v, Fazal Karim and another (P.L.D. 1963 Peshawar Page 93). 8 The aforementioned view further get suoport from a judgment of the Supreme Court (A J & K) given in Iftikbar Ahmed v. Mohammad Hnsaain Khan [PLJ 1978 AJK (SC) 84], wherein after discussing the merits of fhe case it was held : "The mere fact that in the appointment of the guardian, no notice was served on the minor or there is no clear cut order of the Court in the appointment of the guardian, docs not per se render the decisions invalid." It was further observed that : "These minor omissions pointed by the learned counsel for the petitioner are only irregularities and do not in any way render she judgments and decrees of the Courts as invalid unless it is shown that the guardian was either negligent or was in collusion with the other party or there was any fraued committed." 9. The up-shot of the above discussion is that though there was an application made by the plaint S for the appointment of the guardian-arflitem of the minor which was accepted as such by the Court but no formal order was passed thereon, that thereafter the minor was properly repre sented throughout in the proceedings resulting in a compromise decree, the B interest of the minor with his father being identical and the compromise arrived at by the father not challenged as collusive or fraudulent, no prejudice appears to have been caused warranting interference with the decree in question granted by the trial Court on tne basis of such compromise. For the reasons stated above the judgment and order of the learned District Judge is not maintainable as he failed to take into consideration all these important aspect of the case. Consequently the judgment and order of the learned District Judge is set aside. As the learned District Judge has failed to give his decision on the question of market value and compensation for improvement worked out by the commissioner which was too challenged in appeal before him, this case is remanded to the learned District Judge for giving decision on merits on the question of market value and compensation for improvement alone. Rest of the finding recorded by the Seamed lower Court with regard to the compromise decree is, however, maintained. Parties are left to bear their own costs. (TQM) cmc rem«nded.
PLJ 1985 Peshawar 9 PLJ 1985 Peshawar 9 Present : faiz muhammad khan, J N.W.F P. through Secretary Irrigation & Public Health Engineering Department, Peshawar and 2 OtherAppellants versus MIR AHMAD SHAHRespondent RFA No. 36 of 1984, decided on 20-10-1984. Civil Procedare Code (V of 1908)-
S. 24District JudgeGeneral power of transfer and withdrawal Held : Power vesting in District Court under S 24 to be made use of only in respect of pending mattersSuit in case decided on merits by lower court Held : District Court not to competently invoke powers under S. 24 of Code until appeal be accepted bv it and case be remanded to trial court for further proceedings. [P. \}A (ii) CiTil Procedure Code (V of 1908)- \ S 24District JudgeGeneral power of transfer aud withdrawal Exercise ofDistrict Judge hearing appeal against decree of Civi! Judge converting same into suit and disposing of it as such - Held : Action taken being in disregard of procedural law contained in Code, judgment and decree made by District Judge not to be maintainable. [P. ll]B Mr. Amirzada Khan, Advocate-General for Appellants. Mr. Afridi Khan, Advocate for Respondent. Date of hearing : 29-9-1984. JODGMiNT This appeal filed by the Government of the North-West Frontier Province, which originally was filed in this Court as a revision petition but was by order dated 3-12-1983 of this Court converted into an appeal, is directed against the judgment and decree dated 13-6-1983 passed by the learned District Judge, Kohat on original side in a civil suit bearing No. 143/1 instituted on 19-5-80 in the Court of Senior Civil Judge, Kohat. How the suit came to be tried on original side by the Court of the learned District Judge, Kohat would be found from the narration of facts hereinafter mentioned, but whether such an exercise was lawful or not was the only question which was agitated before me in this appeal and required determination. 2. Mir Ahmad Shah instituted this suit against Government of the North-West Frontier Province and three others for a permanent injunction to the effect that the defendants should supply to him cement at the rate of Rs. 36, per bag plus 5% storage charges in connection with the work which he had undertaken to execute for the defendants. The suit was instituted in the Court of Senior Civil Judge, Kohat where it was registered at No. 143 in Register No. 1. The plaintiff had also made an application for the grant of interim injunction to the effect that till the disposal of the suit the defendants should keep on supplying eetrjent to him t the aforesaid rate. \ he interim relief was allowed by the learned Senior Civil Judge. The defendants were not happy over it. They, therefore, went up in appeal to the District Court. The appeal was heard by the learned Additional District Judge, Kohat, who, while dismissing the appeal, in his order dated 13-7.80 observed that since at the time of execution of the contract the rate of cement under Schedule B was Rs. 36/- per bag plus 5% storage cbarges, the Department concerned "must honour its commitment made in the agreement in order to save the Contractor from the loss which was unprovided for". The case was then sent back to the learned trial Judge for further proceedings in the matter. On receipt of the record from the Appellate Court the learned Senior Civil Judge, instead of proceeding further in the case, straightaway decreed the suit on tbe basis of the observations contained in the order of the learned Additional District Judge touching the merits of the case. The defendants, aggrieved as they were by the order of the learned trial Judge, went up in appeal to the Court of District Judge, which Court, by then, came to be presided over by the learned Additional District Judge who had earlier disposed of appeal against the interim order. Having already expressed his mind on the merits of the case, the learned District Judge thought it advisable to get the appeal transferred to some other District Judge for disposal. He accordingly approached the High Court and the appeal was transferred for disposal to the District Judge at Peshawar. It had not yet been disposed of when the District Judge, Kobat was transferred and the District Judge at Peshawar sent back the appeal to the District Judge, Kohat, of course through the High Court for disposal . While seized of appeal against a decided case the learned District Judge, having formed the view that the procedure adopted by the learned Senior Civil Judge was unlawful, instead of accepting the appeal and remanding the case to the learned trial Judge for further proceedings, decided to convert the appeal into suit and proceeded with it. Issues were framed in the case by the learned District Judge and after recording evidence of the parties the learned District Judge decreed the uit. Paragraph 13 of the judgment reads as follows :"Consequently all the issues framed in this case are decided in favour of the plaintiff. This appeal fails. The suit is decreed. It is ordered that the plaintiff would be entitled to receive his balance amount from the Department (if with-held by way of security) alongwith its security and the Department would be bound to pay the balance if so withheld. Parties shall bear their own costs.". The aggrieved defendants then filed revision petition in this Court which w&s converted into an appeal, as already said. 3. Mr. Amirzada Khan, Advocate General appeared on behalf of the appellants and Mr. Afridi Khan, Advocate appeared on ehalf of the respondent. Their arguments were heard and the record gone through with their assistance. 4. The only point pressed by the learned Advocate General before me was that the action taken by the learned District Judge in onverting ppeal into a suit had no backing of law and from that stage onwards all procee dings held m the Court of the learned District Judge were thout urisdic tion, being in complete disregard of clause (b) of sub-section (1) of jectioa 24 of the Codfr of Civil Procedure. His am contention was that since there was no suit pending in the Court of Senior Civil Judge, Kohat, having already been disposed of, nothing could be transferred by the learned District Judge to his Court for disposal. The learned counsel for the respondent, however, argued that section 24 of the Code was not applicable in this case and that section 107 thereof was the real section which was invoked by the learned District Judge while taking the impugned action. He contended that the action taken by the iearned District Judge was not contrary to law, hence unassailable. 5. I have considered the arguments of the learned counsel for the parties. I find much substance in the argument of the learned Advocate General. Section 24 CPC is the relevant provision in the Code whereunder even suo motu powers can be exercised by the Courts mentioned therein for the transfer of appeals, suits or other proceedings. But the power vesting in the Court thereunder can be made use of only in respect of pending matters. Once a suit is decided on merits by the lower Court then the District Court cannot invoke powers under section 24 of the Code until appeal is accepted by it and the case remanded to the trial Court for further proceedings .wherefrom as pending matter, it can then be trans ferred to the District Court for disposal. It is nowhere provided in the Code that an appeal pending in the District Court can be converted into a suit and disposed of as such by the District Court. I do appreciate the B anxiety of the learned District Judge in early bringing to an end, at his level, the litigation between the parties, but in doing so he forgot that the action being taken by him had no backing of law, rather it was in disregard of the procedural law contained in the Code. The judgment and decree made by him, being illegal, are therefore not maintainable. 6. In the result, this appeal is accepted, the judgment and decree passed by the learned District Judge are et aside and the case is remanded to the learned Senior Civil Judge, Kohat for further proceedings. The learned Senior Civil Judge may adopt issues already framed by the learned District Judge and after affording to the parties an opportunity of producing such evidence as they may like to produce, he would dispose of the suit in accordance with law, uninfluenced by the judgment of the learned District Judge and the reasoning adopted therein. Costs shall follow the event. (TQM) Appeal accepted.
PLJ 1985 Peshawar PLJ 1985 Peshawar Present: faiz muhammad khan, J SUHBAT KHANPetitioner versus Mst. ALMASARespondent Civil Revision No. 82 of 1980, decided on 29-9-1934. (J) Civil Procedure Code (V of 1908)
S. 115Concurrent finding of fact ~ interference with -Convincing grounds given for reaching conclusion arrived a: by two courts below Held : High Court not to interfere with concurrent findings of fact reached by courts below, [P. (ii) Chll Procedure Code (V of 1908) S. 115 RevisionExercise ofGround not raised beforeAgita tion ofQuestion of fact raised in High Court not taken up by respondent in her written statementNo issue having been framed, opposite party leading no evidence on such questionHeld : Respon dent not to be permitted to take up such ground in support of findings of courts below. [P. 15]C (iii) Specific Relief Act (I of 1877) -S. 42 read with Limitation Act (IX of 1908)Art. 120Declara tionSuit forLimitation forPlaintiff, undisputedly in possession of suit land since 1939, filing suit for declaration in 1973Dispute between parties over sharing of produce of suit land (leading to security proceed ngs initiated by Haqa Police at instance of defen dant) furnishing fresh cause of action to plaintiff for suitHeld : Suit instituted within six years of accrual of (fresh) cause of action to be within time. [P. 14]A Mr. Muhammad Aman Khan, Advocate for Petitioner. Mr. Abdur Rehman Khan, Advocate for Respondent. Date of hearing : 29-9-1984. judgment Muhammad son of Mera Khan was resident of village Esa Khel Hamid, Tehsil and District Peshawar. He owned landed property in that vill age, the details of which have been given in the heading of the plaint form ing basis of the suit out of which this revision petition arises. He had died in the year 1939 and his inheritance mutation No. 46, which was entered by Patwari Halqa on 22-7-39 on a report made by Rafiuddin, Chowkidar of the village, was attested on 15-6-40 in favour of his widow Mst. Almasa, to the extent of one-fourth share, and his brother Sohbat, to the extent of remaining there-fourth share. Effect to this mutation was given in the sub sequent revenue record which remained unchanged till today. 2. It appears that Sohbat the brother of Muhammad deceased, was not satisfied with the attestation of inheritance mutation of Muhammad in favour of his widow Mst. Almasa, as before such attestation he had raised objection that Mst. Almasa was not entitled to receive inheritance from Muhammad deceased. Sohbat, however, took no action up to the year 1973 when on 3-12-1973 he instituted this suit claiming a declaration to the effect that since Mil. Almasa, defendant in the suit, had been divorced by Muhammad during his life time and a document to that effect had also been executed by him on 6 5-39, she was, for that reason, not entitled to inherit the property from Muhammad and that inheritance mutation No. 46, attested on 15-6-40, being against law, in so far as it related to the share of Mst. Almasa, was inoperative against his rights and the entry made in the revenue record on its basis being against law was als6 void and ineffective and was liable to correction. The alternative relief claimed by Sohbat was the possession of the suit land. It was stated in the plaint that Muhammad had divorced his wife Mst. Almasa duric% him life time and a document evidencing such divorce was also executed by him on 6-5-39. It was also mentioned in the plaint that Msl. Almasa defendant below were erroneous, which were the result of misreading and non-reading of material evidence brought on record. The learned counsel also argued that since the petitioner was admittedly in possession of the suit land, any fresh invas'on on his rights or title furnished a fre^h case of action to him, and that in the light of this principle and applying Article 120 of the Limi tation Act to this case, the action taken by Illaqa police for security pro ceedings between the parties, the fact which was also admitted by the respondent in her written statement, gave a fresh cause of action to the petitioner making his suit within time. 8. The learned counsel for the respondent did not seriously challenge the position taken up by the learned counsel for the petitioner with respect to the application of Article 1 0 of the Limitation Act to this case and with respect to the fact that the security proceedings conducted by the Illaqa Police at the instance ol the respondent furnished a fresh cause of action to the petitioner for this suit. He, however, streneously contended that the respondent had not been divorced by Muhammad during bis life time and that the so-called divorced-deed was a forged document prepared after the death of Muhammad and that the concurrent findings of fact reached by the learned two Courts below on this point could not be inter-ferred with by the High Court in revisiona! jurisdiction. His alternate contention was that even if we were to assume, for the sake of arguments, that the divorcedeed was genuine, yet the divorce, according to the evidence brought on record, having been effected during the death-illness of husband could not deprive the wife from inheriting the property of her husband because Muhammad had died soon after the execution of this document and before the expiry of 'Iddat' of Mst. Almasa respondent. According to law, the learned counsel urged, such an attempt by a husband cannot operate to deprive the wife of the right or inheritance Mst Almasa respondent had not, therefore, become disentitled from inheriting the property of Muhammad, her husband. 9. The revenue record produced in this case clearly established that the petitioner was in possession of the suit land. This fact was even not disputed by the respondent. That being so, I agree with the learned counsel for the petitioner that the dispute between the parties over sharing of produce at the suit land, whL-h led to security proceedings initiated by Mlaqa Police at the instance of the respondent, furnished a fresh cause of action to the petitioner for this suit. I also agree with him that the suit was governed by Article 120 of the Limitation Act and that it was institu ted in Court within time. The findings of the learned two Courts elow on issue No. 2, being the result of misconception and misapplication of law, are not maintainable, which are hereby reversed. 10. With respect to the findings of the learned two Courts below on issue No. 3, the learned counsel for the respondent failed to point out any material on the record which could support such findings That being so, such findings are also liable to reversal, I order accordingly. Now I come to the crucial point in this case whether or not Mst. Almasa had been divorced by Muhammad If 1 were to decide in the affirmative, than Mst Almasa was not entitled to inherit the property left by Muhammad. But if I were to decide in the negative, then the inheri tance mutation had been rightly attested and the plaintiff, in consequence, would be out of Court. Both the learned two Courts below have foun this fact in favour of Mst, Almasa. According to the judgments impugned herein the petitioner had not brought reliable evidence on the record to prove that Mst. Almasa had been divorced by Muhammad in his life time. It has also been held by the learned two Courts below that the divorcedeed, said to have been executed by Muhammad, was a forged document, and had it been in existence at the time of the death of Muhammad, then the petitioner, in whose custody it was found, would have produced it before the revenue Officer who had attested the inheritance mutation of Muhammad, after allowing the petitioner three chances of producing before him cogent evidence in support of the fact that Mst. Almasa had stood divorced by Muhammad. 12. The scribe of the divorce-deed had appeared in the witness-box to testify the execution by Muhammad of the divorce-deed ted 6-6-1939, and so did one of the marginal witnesses, Gul Ahmad. The statements given by these witnesses at the trial were in the mind of the two Courts below while disposing of this issue. These witnesses were disbelieved by the two Courts below for reasons given by each Court in its judgment impugned herein. One of such reasons was that had such deed been in existence at the time of the death of Muhammad or even at the time of attestation of his inheritance mutation then the same should have been produced by the petitioner before the Revenue Officer attesting the inheri tance mutation, who had afforded to the petitioner pportunities to prove that Mst. Aimasa had no right to inherit from Muhammad. Long silence of the petitioner after attestation of nheritance mutaiion of Muhammad in the year 1940 had also influenced the mind of tne learned two Courts below. These are the rounds which also appear to me to be convincingi for reaching the conclusion arrived at by the learned two Courts below, ij would, herefore, not interfere with the concurrent findings of fact reached! y the learned two Courts below on the point that Mst. Almasa espondenij had not been divorced by Muhammad. 13. I would now deal with the alternate argument of the learned counsel for the respondent regarding the effect of the ivorce on the rights of Mst. Almasa when it was pronounced during the death-illness of Muhammad. It is true that an irrevocable divorce pronounced by a husband during his death-illness, not at the instance of wife, cannot prevent the wife from inheriting the property of her husband, if the death of the husband takes place during 'Iddat' period of the divorcee. Under Muhammadan law, in such an eventuality, she is entitled to inherit the pro perty of the deceased husband. But in this case this ground was not taken up by the respondent in her written statement, though she as having the services of a very competent lawyer, nor was ny issue framed thereon, with the result that, as urged by the learned counsel for the petitioner, the opposite side was predjuiced in not eading proper evidence with respect to this question of fact. The learned counsel for the respondent, therefore, cannot be permitted to ake up this ground in support of the findings of the learned two Courts below on issue No. 4. 14. Since the petitioner fails on issue No. 4, answer to issue No. 5 must come in the negative. 15. In the result, there being no merit in this petition, it is hereby dismissed with costs. (TQM) Petition dismissed,
PLJ 1985 Peshawar 16 PLJ 1985 Peshawar 16 Present: inavat elahi khan, J MUHAMMAD YOUSAF-Appellant versus FAZAL KARIM and 4 OthersRespondents (i) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)
Ss. 13 & 15Eviction-Application forIdentical cases -Record ing of evidence in Identical pleas raised and identical vidence led by parties in all casesNo objection taken to mode of recording of evidence at proper stageHeld : Inference egarding evidence having been recorded in such manner with consent of parties to be drawn Decision of cases also not shown o be adversely affected on merits- No prejudice caused to appellants Evidence on record justifying findings arrived at by Rent troller and apnellate courtHeld : No case made out for interference in second appeal, 17[P. l5jC & D (ii) Urban Rent Restriction Ordinance (W. P. Ord. VI of 159)
S. 13 (2) (»/)EvictionReconstruction Ground ofDeath of landlordEffect ofOne of landlords murdered before decision of appeal against order of evictionSuch landlord succeeding by his two sons, daughter and widow-Held : Mere death of such landlord not to lead to inference regarding proposed reconstruction being not (probably) to be carried out in terms of eviction order. [P. \i\A (Hi) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959) Ss. 13 (2) (vi) & 15Eviction Reconstruction Ground of - Landkrds intending to improve and substantially develop their property by replacing old single storey by muiti-storeyed building Evidence on record justifying finding arrived at by Rent Controller and Appellate courtHeld : There being nothing in law to prevent landlords from improving and developing their property, no inter ference to be made with order of eviction in second appeal. [P. 18]fi & C PLJ 1980 SC 372 ref. Mr. Muhammad Latif, Advocate for Appellant. Date of hearing : 15-9-1984, order This order is to dispose of SAO No. 13/84, SAO No. 14/84, SAO No. 15/84, SAO No. 16/84, SAO No. 17/84, SAO No. 18/X4, SAO No. 19/J-4, SAO No. 20/84, SAO No 21/84, bAO No. 22/84, SAO No. 23/84. SAO No. 24/84, SAO No. 25/84, as the question for consideration is com mon to all the appeals. 2. The facts giving rise to these appeals are that Gul Zir Khan (now deceased and represented by his LRs) and one Haji Mirza Khan, who are respondents in these appeals, applied under section 13 of the West Pakistan Rent Restriction Ordinance, 1959, for the eviction of their tenants, who are the appellants herein, from the shops in dispute situated in Namank mandi, Peshawar City. The eviction of the tenant was sought by the landlords solely on the ground of bonafide and reasonable requirement for re-construction of the property. The ejectment applications were resisted by the tenants (appellants) primarily on the ground that the applications were mala fide and in fact in the landlords wanted to enhance the rent. Before the Rent Controller Gu! Zir Khan (respondent No. 1) appeared as his own witness and also examined one Rehmanuddin, Record Keeper, Municipal Corporation, Peshawar (P W. 2) to prove the requisite sanction and the site-plan of the proposed construction. The respective tenants besides examining themselves as witnesses also produced Abdullah Shah and Sultan Shah (RW. 2 & RW. 3) in all the cases and their evidence is of identical nature. The tenants or their witnesses nowhere stated in their evidence that the eviction sought was mala fide because the landlords in fact intended to enhance the rent. However, it was stated that the landlords in fact wanted io sell the property after obtaining the eviction order. The tenants, however, admitted that the landlords (Gul Zsr Khan) respondent No, 1 had informed them that after re-construction the pro perty shall again be given to them on rent. Sultan Shah (RW. 3) stated that about 4 or 4-J- years ago some unknown person had accompanied the landlord to the premises in dispute who wanted to purchase the property if the tenants .were evicted. 3, In view of the evidence produced in the case the learned Rent Controller came to the conclusion that the asonable nd bona fide requirement of the landlords for re-construction has been established, The ejectment order, prayed for was accordingly passed in all the cases against the tenants on 21-2-1983 and they were directed to put the land lords in possession ot the property within four months of the order The appeals filed by the tenants were also dismissed by the learned District Judge oo 22-12-1983 The learned District Judge found that ip the written statements of the tenants the mala fides of the landlords were referred to the enhancement of the rent whereas in the evidence this piea was totally abandoned and substituted by the plea that the landlords in fact wanted to sell the property. In the absence of any convincing evidence to the contrary it was held that from the evidence produced by the landlords and rom he approved site-plan and the requisite sanction for re-construction it was evident that about 30/40 years old structure in the form of a ingle storey was to be replaced by a multi-storeyed big market. The aforesaid development and improvement of the property was held to indicate the bona fide requirement of the landlords. However, while, dismissing the appeals the tenants were allowed a further period of four months to vacate the premises. 4. In support of the appeals the learned counsel argued that the landlords have failed to prove their hona fide and reasonable equirement for re-construction and, therefore, the eviction orders were not justified inlaw. It is also urged that since Gul Zir Khan one of the landlords had been murdered it was no longer possible to carry out the proposed re construction. The argument is without any force. The mere deaih of one of the landlords would not lead to inference that the proposed re-construc tion would not be carried out in terms of the eviction orders. Gul Zir |Khan (deceased) was succeeded by his two sons, a daughter and a widow who had been duly made parties to his litigation, Appaicntly there is n« reason to assume that Haji Mirza Khan (respondent) and the legal heir--, of Gul Zir Khan dceased) would not re construct the property as prayed for in the ejectment applications. It may be mentioned that under the provisions of section S3 (5) of the Ordinance, if a landlord, who obtains an eviction order for re-construction, does not demolish the old building or does not construct the new building within the prescribed period renders himself liable to punishment. So far as question of the bona finde and reasonable requirement of the landlords for re-construction is concerned it may be mentioned that from the evidence produced by the landlords it has been rightly concluded by the learned District Judge that the disputed old construction which is in the form of a single storey was to be replaced by a mu!ti-storeyed building which showed the desire of the landlords to improve and substantially develop their property There is nothing in law So prevent the landlords from doing so. In Gbulaia Nabi v. Musbtaq Jlted (P. L, J. 1980 SC 37/) it was observed : "Now, in sxsch a situation, even if a landlord tries to defeat the tenant's rights under subsection (5-B) the strong arm of the law is strong enough to prevent him from defeating his tenant rights but this would not by itself convert a bona fide claim into a mala fide ciaim, the moreso, as the interests of the tenant are protected by subsection (5-B), whilst the development of pro perty is in the national interest and is ia no way inconsistent with the objects of the rent laws." Ja view of this observation of the Honourable Supreme Court and the provisions of subsection (5-B) of Section 13 of the Ordinance the apprehen sion of the learned counsel that the appellants shall not be given possession of the property after re-construction is misplaced. Similarly, there is no force in the argument that the evidence in all the cases was simultaneously recorded by the Rent Controller It is not disputed that in all the cases identical pleas were taken and identical evidence was led by both the parties and no objection was taken to the mode of recording the evidence at the proper time. Thus, an inference can be drawn that trie evidence was recorded in this manner with the consent of both the parties. Even other wise, the learned counsel was unable to show that any prejudice was caused to the appellants or the decision of the cases had been adversely ffscted on merits. There is sufficient evidence on the record to justify the finding arrived at by the Rent Controller and the iarned lower Appellate Court. No case has been made out for interference in second appeal. All the appeals are, therefore, dismissed in limine, and the stay orders issued therein stand vacated. (TQM) Appeal dismissed.
PLJ 1985 Peshawar 18 [DBj PLJ 1985 Peshawar 18 [DBj Present : inayat elahi khan & ali hussain qazilbash, JJ ABDULLAH KHANPetitioner versus MEMBER, BOARD OF REVENUB NWFP, Peshawar and 4 OthersRespondents Writ Petition No. 142/81, decided on 30-9-1984. (i) Land Reforms Regulation (MLR 115), 1972 Para. 25(3)(d)-~TenantRight of pre-emption ofPre-emptor in cul tivating posietsios of hadHeld : Mere fact of pre-emptor beingtenant under lessee and cot under original owaer not to deprive him of status of being tenant of Sand. [P. 1}A (ii) Land Reforms Regulation (MLR 115), 1972-
Paras. 25 (3) (d) & 12 (13) [as added by Land Reforms (NWFPAmendment) Ordinance (Xl'of 198!)] Tenant Right of pre emption of-Pre-emptor answering ai! requirements of "tenant" as defined in various provisions of law Held : Pre-emptor in actual possession of land as tenant not to be excluded from benefits of Para . 25 (3) (d) of Regulation. [P. 2l]B (ill) L«ad Reforms Regulation (MLR 115), 1972- Para. 25 (3) (rf)Tenant Right of pre-emption ofPre-emptor holding land as tenant under lessee with express or implied consent of real ownersHeld : Mere fact of there being any possibility of pre-emptor being evicted from land at instance of owners not to be sufficient to term not such pre-emptor as 'tenant as envisaged by Land Reforms Regulation. [P. 211C Mr, Bashir Ahmad Ansari, Advocate for Petitioner. Mr. S. Rifaqat Ali Shah, Advocate for Respondent No. 4. Khan Bahadar Khan, Advocate for Respondent No. 5. Date of hearing : 30-9-1984. judgment loayat ESahi Khan, d. The dispute in this writ petitioa coscernt agricultural land measuring 33 kanals 19 marlas bearing Khasra No. 1200/869 and 876 situate in Mo/a Sheikho Tehsil Charsadda, District Peshawar The land was purchased by Abdullah Khan and another (petitioners) through a registered sale deed dated 2o 3-1976. The sale was pre-empted by Ibrahim Khan (respondent No. 4) claiming superior right of pre-emption being a tenant in cultivating possession of the land. The suit was resisted by the vendees mainly on the ground that the plaintiff was not a tenant qf the suit land. In view of the evidence produced by the parties, the plaintiff's suit was decreed by the Collector, Charsadda, on 9-6-1979. The vendees (petitioners) feeling aggrieved went in appeal before the Additional Commissioner, Peshawar Division, but the appeal was dismissed on 19-1-1980. The revision filed by the petitioners before the Member, Board of Revenue, N.-W.F.P , Peshawar , also failed vide order dated 21-4-1980. Ai! the forums had given a concurrent rind'ng that the pre-emptor Ibrahim Khan (respondent No. 4) was a tenant aid, therefore, had the first right of pre-emption under para. 2>(3)(af) of Marual Law Regulation 115. 2. The learned counsel for the petitioners has raised two-fold contentions. Firstly, that the word 'tenant' would not include a sub tenant or a sub-lessee since admittedly Ibrahim Khan Pre-emptor wa holding the land as a sub tenant under Haji Gul Pasand (respondent No. 5) who was a lessee of the land fro.n the orginial owners. Secondly, that the pre-emptor being a sub-tenant suffered from disqualification of being liable to eviction from the land under para. 25(}(a) of the Regula tion and, therefore, he could not be vested with a superior right of pre-emption as envisaged by the aforeiaid provisions of law. It is contended that a lessee whether cultivating the land himself or through another person, could not be termed as a 'tenant'within the meaning of para graph 25(3}(d) of Martial Law Regulation 115. Reliance in this regard is placed on the definition of 'tenant as given in the Land Reforms (North West Frontier Province Amendment) Ordinance, 1981, (Ordinance XI of 1981 J). At the outset it may be mentioned that the dispute between the parties stood finally decided by the learned Member, Board
<f Revenue N.-W.F.P,, on 21-4-1980 whereas the aforesaid amending Ordinance came into force on 28th September, 1981 Prior to enforcement of the Amending Ordinance and in the absence of any definition of the word 'tenant' '-n Martial Law Regulation 115 reference used to be made to statutes which are in part maieria with the statute under consideration to ascertain the meanings of the word 'tenant'. The definition of the word'tenant'in the West Pakistan Land Revenue Act. 1967, is similar to the one given in the NWFP Tenancy Act, 19:0, and is in the following terms : " 'tenant' means a person who holds land under another person and is or but for a special contract would be, liable to a pay rent for that land to that other person, but it does not include: an inferior Sand-owner, or a mortgagee of the right of a landlowner, or (f) a person to whom a holding has been transferred, or an estate or holding has been let in form under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or, (d} a person who takes from the Government a lease of unoccupied land for the purpose of sub-letting it;" keeping in view the aforesaid definition, Ibrahim Khan pre-emptor was definitely a tenant of the land in dispute at the relevant time, and, there fore, had the first right of pre-emption under para. 25 of the Regulation. The argument that the pre-emptor being a sub-tenant under the lessee could not be described as a 'tenant under the Regulation is without any sub stance. The word 'landlord is defined in section 4(12) of the West Pakistan Land Revenue Act, i967, as under; "Landlord 1 means a person under whom a tenant hold land, and to wh the tenant is, or but for the special contract, would be liable to pay rent for that land, and shall include a lessee of such person, and the predeccssori and successors-in-interest ot such person." This definition if read alongwitta the definition of the word 'tenant'as given in the aforesaid provisions of law would make it clear that Ibrahim Khan, pre-emptor, being in cultivating possession of the land was a tenant' within the meanings of the Regulation. The mere fact that he was a tenant under the lessee and not under the original owner would not deprive him of the status of being a tenant of the land. The entire argu ment of the learned counsel is based on the definition of the word 'tenant as given in the Land Reforms (North West Frontier Province Amendment) Ordinance, 1981, which is as under: "2(13} "tenant" means a person who holds land under another person, and is, os but for a special contract would be, liable to pay cent for that land to that other person and includes the predecessors and successors-io-iiiterest of such person; but does no? include: a mortgagee oi' the rights of the land owner, or a person huUhng any land under the Federal Government, or a Provincial Government, or under any other statutory authority, body or corporation established by any such Government, as may be notified by it in this behalf, or(r) a person to whom a holding has been transferred or an estate or holding ha been let in form, for the recovery of an arrcar of Sand revenue or of a sum recoverable as such an arrear, or (d) a lessee, whether cultivating the land himself or through another person." The contention is that when Gal Pasand Khan, being a lessee, stands excluded from the definition of the word 'tenant' and could not claim a superior right of pre eruption then a person holding the land under him would also be excluded and can nor be vested with any such right. The argument is without any force Evn if the definition of the 'word 'tenant' given in the Amending Ordinance is kept in view, as suggested by the learned counsel, the prc-ernptor in this case definitely falls within the meaning of the said term and can be rightly termed as a 'tenant for She purposes of the Land Reforms Regulation. 19?2 The rights of Gul Pasand Khan as a icssee of the land were not in dispute before the forums concerned and, therefore, the fact that he does not fall within the defini tion of the word 'tenant would have little effect on the right claimed by Ibrahim Khan, pre-emptor. It is obvious that the pre-emptor answers all the requirements of a 'tenant' as defined in the aforesaid provisions of law and, therefore, being in actual possession of the land as a tenant could not be excluded front the beneS's of para 25(3)(d) of tne Regula tion. 3. The other contention thai the pre-emptor being a sub-tenant ot Haji Gul Pasand (respondent No, 5) suffered from a disqualification of being evicted from the land at the instance of the real owner is equally without any substance. From the revenue record it is clear that the pre-emptor "had been in possession of the land as a tenant-at-will under; the lessee since prior to 1973. There is nothing on the record that the' owners of the !and had ever sought his eviction from the land on the aforesaid ground, it can, therefore, be assumed that hs was holding the land as tenant under the lessee with the express or implied consent of the real owners. Even otherwise the racre fact that the pre-emtor could have been evicted from the land at the mstanse of the owners under paragraph 25(l|(d) is not sufficient to hold that he could not be termed as a '«,ant' as envisaged by the Land Reform Refuia tion. 4. No other point is urged by the learned counsel for the peti tioners. 5 For the aforesaid reasons no exception can be taken to the orders impugned in this writ petition. The petition, having no mnt, is accordingly dismissed with no order as to costs. Petition dismissed.
PL J 1985 Peshawar 22 [D PL J 1985 Peshawar 22 [D. I. Khan Circuit Bench] Present : muhammad ishaq khan, J MUHAMMAD AYUB KHAN and Another-Petitioners versus Maulana RIYAZUL HASANRespondent Civil Revision No. 2 of 1983, decided on 30-9-1984. (i) Civil Procedure Code (V of 1908) .§. 151CourtInherent powers ofExercise ofHeld : Inherent powers vesting in courts to do rignt and to undo wrong in administ ration of justice, courts not to be rendered powerless to do justice or redress wrong merely for want of express provtiion of CodeHeld further : Inherent powers not to be invoked in case of there being express provision relating to matter sought to be invoked under S. 151, CPC. [P. 28JO (ii) Civil Procedure Code (V of I908j -S. 151 CourtInherent powers ofExercise ofMatter already disposed of by courtHeld : Power conferred under S. 151, CPC not to be exercised. [P. 28j£ (iii) Civil Procedure Code (V of 1908) S. 151Court- Inherent powers ofConsent decree Challenge to Plaintiff taking no stepi towards nullifying consent decree under provisions of CodeHeld: Court to have no jurisdiction to ponder over such aspect of matter under powers conferred upon it under S. 151, CPC. [P. 28JF (iv) Civil Procedure Code (V of 1908)-
O. XXII. R, 3Consent decree-Challenge to Held : Consent decree being open to such attacks as be available against contract, such decree to be set aside within prescnbid period of limitation, on grounds sufficient to invalidate contractHeld further Such decree so long not set aside, same not to be ignored on ground of its embodying illegal term. [P. 28 ]B (») Civil Procedure Cede (V of 1908)
O. XXII. R. 3Consent decree Challenge to Plaintiff not letting content decre« net «»ide in termt of various provisions of Civil Procedure Code or by applying for amendment of plaint (in subsequent suit) Held : Such decree having become final, same not to be declared as nullity without having resort to normal legal course. [P. 28]C (vi) Alienation of Land Act (XIII of 1900) S. 3LandPermanent alienation ofHeld: Permanent alienation of land to be permitted in case of (i) alienor being not member of agricultural tribe or (it) where both alienor and alienee be members of same agricultural tribe or of two different agricultural tribes falling within same group Held further : Sanction of Deputy Commis sioner being necessary in cases not falling in above two categories, want of same to make transaction invalid. [P. 26]A Tii) Land Revenue Act (W. P. Act XVII of 1967)
S 52Record of rightsEntries in Presumption regarding Held . Entry made in record of rights in accordance with law for the time being in force or in periodical record to be presumed to be true until contrary be proved or new entry be lawfully substituted there for. [P. ^}K (viii) Pakistan (Administration of Evacuee Property) Act (XII of 1957)
-S 3Evacuee property Declaration regarding Property notdeclared as evacuee property upto target date (1st January, 1957) Held : No declaration regarding evacuee nature of property to be made after date fixed by enactment. [Pp. 29&31JG&J (it) Pakistan (Administration of Evacuee Property) Act (XII of 1957)
Ss 3 & 22PropertyEvacuee nature ofDeclaration regarding
Interested person Claim by
Held
:
Declaration or treatment of specific property as evacuee one by custodian being pre-requisite obliging person affected to prefer claim with custodian, mere vesting of property in custodian by itself to be nothing
Held further
: Department to be proved to have done some overt act in respect of particular property so as to enable person aggrieved to prefer claim with custodian within prescribed period. [P.
30]/f
PLD 1964
Lahore 274 ref.
Mr. H. Aziiur Rehman Khan, Advocate for
Petitioner.
Mir Adam Khan, Advocate for Respondents.
Date of hearing : 6-6-1984, judgment
Muhammad Ayub son of Khaliq Dad and
Badshah Khan son of
Surat Khan of Lakki Minakhel Tehsil Lakki Marwac
District Bannu
(defendants/petitioners) have sought the indulgence of this Court by in voking the revisional jurisdiction as envisaged by Section 115 CPC praying for setting aside the judgment and decree dated 2-9-1982 of the Court of Mr. Ishtiaq Noor Additional
District Judge, Bannu wnereby maintaining the judgment and decree of the Court of Senior Civi! Judge, Bannu dated 6-5-1980 he dismissed the appeaj of the defendants/petitioners with costs.
2. Facts in brief leading to the instant Civil
Revision are that
Moulana
Riaz-ul-Hassan son of Nawab Hassan a refugee of Lakki
(plaintiff/respondent) instituted a suit in the Court of Senior C:vsl
Judge, Bannu for :
(a)
A perpetual injunction aga
nullifying the consent decree under the provisions of the Code and further failed to challenge the order dated 11-12 1974, referred to above, the Senior Civil Judge, had nu jurisdiction to ponder over this aspect of the nutter 4 even under the powers conferred upon him under Section 151 .C/C. 6. It is not disputed that the property in question was not declared -- as evacuee property upto 22-5-1961 when on the information of one Maazullah the land in suit was declared as evacuee property out of which 4 kanals were put to open auction and given to the plaintiff as the highest bidder. The plaintiff thereafter sold 1 kanal out of it to one Sahib Khan Patwari. Section 3 of the Pakistan Administration of Bvacuw Property Act sub-section (2). The bare reading of this sub-section would reveal that nothing in sub-section (I) shall apply to any person in respect of whom any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating any such person as an evacuee or such property as evacuee property. Since it is conceded that no such steps were taken before the target date nor were any proceedings pending before that date the instant case is not covered by this clause. As for clause (b) of sub-section (2) of section 3 is concerned it also relates to those properties which are in unauthorised possession, management or supervision of certain parties who cannot be termed as owner of such property. Learned counsel for the plaintiff/respondents laid great stress on sub-clause (b) aforesaid and argued that since the land in suit had been sold by the original owner to the non-muslim evacuee, the possession and supervision thereof by the defendant/petitioner was unauthorised and property did automatically vest in the Custodian in terms of section 7 of the Aci, There can be no dispute over the principle that all the properties left by the non-muslim evacuees did vest in the Custodian, The question for determination however is whether the land in suit was actual!}" evacuee property which could auto matically vest in the Custodian after the migration of the Hindus as a esult of the partition of tne sub-continent. It has clearly been provided in Section 22 of the Act that : "22. Claims by interested persons.(!) Any person claiming any right or interest in any property treated by the Custodian or a Rehabi litation Authority as evacuee property may prefer a claim to the Custodian on the ground that. the property is not evacuee property, or his interest in the property has not been affected by the provisions of this Act. (2) An application under subsection (I) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date, (3) On receiving an application under subsection (2), the Custodian shall hold a summary inquiry in the prescribed manner, and after taking such evidence as may be produced shall pas an order, stating the reasons therefor,} rejecting Jhc application or allowing i« wholly or in part on such terms and conditions a he thinks fit to impose. From the simple reading of this section it is clear that a person aggrieved by the order of the Custodian or the Rehabilitation Authorities treating or declaring any property as evacuee in which he claims any right or interest may prefer a claim to the Custodian on the ground that the property is not evacuee property or his interest in the property has not been affected by the provision of this Act. It leads one to she irresistible conclusion that the declaration or treatment of a specific property as an evacuee one by the Custodian is the pre-requisite obliging the person affected by such declaration or treatment to prefer a claim with the Custodian. Thus the mere vesting of the property in the Custodian by itself is nothing. On the other hand the Department must be proved to have done some overt act in respect of a particular property i.e. it should have been treated by the competent authority as evacuee property so as to enable the person aggriev ed lo prefer t claim with the Custodian witbia the prescribed period, "Jo. Syed Alt Iqtidar Shah Data and others v. The Custodian Evacuee Property West Pakistan Lahore reported as PLD 1964 L\ahore 274 it was held that :
"In the first place, the vesting of property in the Custodian or holding of property on behalf of the Custodian is only by fition of law. In that application these provisions are of a general nature because they do not deal with any specific or identified property. In the second place, the most formidable hurdle in the way of the Department pertains to the words "not treated" used in the subsection under consideration. The significance of these words cannot be over-looked. In my opinion their meaning is that the mere vesting of property in the Custodian is not ufficient The competent authorities must have done some overt act m respect of some specific property, namely that ny particular per son or any particular property must have been treated by a com petent authority an evacuee or evacuee roperty. This view is trengthened by the fact that in another part of the enactment the Legislature has specifically provided a emedy to the parties who i "" feel aggrieved from the treatment of their properties as evacuee. Assuming, without conceding for the sake of arguments that since Sardar Khan the original owner had alienated the land measuring 12 kanat and 1 marlas to non muslim evacuees prior to partition, irrespective 01 the fact that these alienations were never given effect in the revenue papers in the presence of a clear bar on such alienations under the Commissioner had genuinely teeated it as an avacuee property, one fails to understand as to why the plot of 4 kanal only was declared as evacase and not the entire alienated area. Thu also suggests ma/a ftie on the part of ths Settlement Commissioner. In declaring only portion of the entire alienated land as evacuee one In the light of what has been discussed above it becomes clear, 1 that property in suit having not been declared as evacuee property on or before the first of January, 1957, it could not be so declared thereafter -. particularly in the circumstances that it was nowhere shown in the revenue record as evacuee property direct from the date of alleged alienation by Sardar Khan the original owner upto the 1st of January 1957 or for that matter upto 22-5-1961 when all of a sudden it was declared as such by the Settlement Commissioner, 7. From the perusal of the Jamabandij'Khasra GirdawrT it is crystleclear that the land in suit has constantly been shown in he evenue record to belong to Sardar Khan original owner, even after the so-called aliena tion and on his death it devolved on his egal heirs and vice versa. Under j section 52 of the Land Revenue Act an entry made in the record of rightsin accordance with the law for the time being in force or in a periodical record shall be presumed to be proved until the contrary in proved or a| new entry is lawfully substituted therefor. The plaintiff/respondent hasL-utterly failed to the contrary, the cjnsistent entries m the revenue record! and similar is the case with the order of the Settlement Commissioner who! declared the property in suit as an evacuee and put it to open auction with | ^^. out having least consideration towards the presumption of truth attached to the entries in the revenue papers. As observed earlier right from the date of the alleged alienation in favour of the non-muslim Hindus by Sardar Khan original owner of the suit land upto the partition in 1947 and thereafter uptil 22-5-1961 when the land was declared as evacuee by thf Settlement Commissioner and even thereafter the entries in the revenue record have shown no change either in the ownership or in the possession. These entries in the revenue record were well within the knowledge of the Hindus to whom the land was alienated because an attempt was made by them to get the sanction of the Deputy Commissioner as required by Section 3 of the Land Alienation Act and having failed in the process it obliged Choudhry Maing Raj to file a Civil Suit and get a decree from the Civil Court. This act on the part of the Hindus clearly suggests that it was well in their knowledge that the alienation in their favour by Sardar Khan was not given effect in the revenue papers In WaJi Muhammad v. Settlement Commissioner Sargodhareported as 1973 Law Notes pages, 58 it was held :- "If the rehabilitation record contains an entry contrary to that in the revenue records, then the latter will prevail. It is established law that presumption of truth is attached to the entries in jamabandis. These ntries wsre made long before the rehabilitation record was prepared and no suspicion was attached to them If there had been any doubt with regard to their genuineness then the Hindu owners would have asserted their right in getting the same corrected. Since it was never done, therefore, reliance on the said entries has to be placed upon in determining the nature of the land in question.Accordingly I hold that the consistent entries in the revenue papers with regard to the nature of the property in suit and the ownership/possession must prevail as against those of the Settlement Commissioner in view of the provision contained in Section 52 of the Land Revenue Act and in the light of the observation reproduced above. 8. It is not disputed that right from 1929 nowhere the Hindus resor ed to the legal course to get possession of the land ienated eir avour. To recover possession which is adverse in nature a time limit of 2 years is prescribed under the Limitation Act. Even if it is presumed just or the sake of arguments that the non-mulim Hindus had become owners of the suit land as a result of the lienation in their favour by Sardar Khan the original owner, no attempt whatsopver was made by them to get possession of their espective area. There is nothing on record to suggest that Sardar Khan or for that matter his successors-m-interest held the land with the permission of the so called non-muslim evacuee. Even if we apply the principle of adverse possession Sardar Khan had come the owner and as such on this principle too ihe land no more remained as evacuee one much prior to the partition of the sub- ontinent. 9. From what ever angle I may look to the case I feel that the plaintiff/respondent has miserably failed to prove his ase nd the learned two Courts below have gravely erred in granting him the decree impugned n this Civil Revision Accordingly on tne iew of the matter that 1 take I accept this Civil Revision set aside the judgments and decrees of the two Courts below and dismiss he suit of the plaintiff but keeping in view the legal points involved I would leave the parties to bear their on costs. (TQM) Revision accepted.
PLJ 1985 Peshawar 33 [DB] PLJ 1985 Peshawar 33 [DB] [Dera Ismail Khan Bench] Prtsent; abdul khaliq khan & muhammad ishaq, JJ Haji NOORUL HASSAN-Petitioner versus DISTRICT JUDGE, Dera Ismail Khan and 8 OthersRespondent! Writ Petition No. 46 of 1983, decided on 5-3-1985. Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)-
S. 15 (5) [as substituted by N.W.F.P. Urban Rent Restriction (Amendment) Ordinance. 1979 (IX of 1979)]RentDeposit of Order ofHeld : Order with regard to deposit of rent remaining effective only till disposal of petition, fresh order with regard to such deposit to be made by appellate courtNo direction for deposit of rent made by appellate court in case Held : Court of appeal to have no power to strike off defence of tenant. [P. 34J-4 & B PLJ 1979 Quetta 79 ref. Mr. Muhammad Ayaz Khan, Advocate for Petitioner. Mr. S. Samad Hussain Sherazi, Advocate for Respondents (2 to 9). Date of hearing ; 5-3-1985. judgment Abdul Khaliq Khao, J. The question for determination in the writ petition is, if the Appellate Court could strike off the defence of the tenant respondent under section 13 (6) of the Rent Restriction Ordinance, without having made direction with regard to the deposit of rent. 2. The facts relevant to answer the question, in brief are that on 14-9-1981, the respondents No 4 to 9 initiated roceedings in the Court of Rent Controller D. I Khan for ejectment of Haji Noor-ul-Hassan and two others, on the grounds that the hop in question rented to respondent No. 1 was personally needed by some of the landlords that the tenant has sublet the shop to -respondents, that they have damaged the property and that the tenant has his own shops in Muslim Bazar, D. I. Khan, which he has ented to other persons, 3. The claim was re sisted by the opposite party and in result, issues arising out of the pleadings of the parties were framed and evidence recorded. It may, however, be stated that though no order with regard to deposit of rent was made as no allegation for non-payment of rent had been preferred, however, on 13-1-1982, Haji Noor-ul-Hassan, the tenant, moved the Court for deposit of arrears of rent and in consequence, on 16-5-1983 after notice had been served on the admitted, landlord, the tenant-appellant was directed to deposit an amount of Rs. 1.750/- as arrears of rent before 22-6-1982. He was further directed that in uture, the monthly rent is to be deposited before the 15th of the succeeding month. The order of the Rent Controller was complied with till the time, that the mam application was disposed of on 22-5-1983. The petition for ejectment was dismissed but the parties were left to bear their own costs. Dissatisfied, the landlord filed an appeal in the (Jquff of District Judge, D. 1, Knan. The said appeal was pending disposal when it was brought to the notice of the Court that as the tenant has failed to pay the rent for the month of July 1983 per directions of the Rent Controller, hence his defence be struck off. It may be noted that the rent for the month of July 1983 was deposited on 3rd of September, 1983. The learned first Court of Appeal after having heard the arguments, was pleased to agree with the arguments addressed on behalf of the landlords, ordered the striking off the defence of the tenant and in result, directed him to vacate the premises and put the landlord into possession of the shop forthwith. Aggrieved, the tenant has filed the present writ petition challenging the correctness of the said,order. 4. It was argued that in view of the amendment in the N W.F.P. Rent Restriction Ordinance in consequence of Ordinance IX of 1979, it was incumbent on the Appellate Court to have directed the tenant with regard to the deposit of rent and having not done so, no punitive action taken was tenable under the law. In order to follow the arguments of the learned counsel, we may refer to the relevant provision of Section 15 of the Rent Restriction Ordinance as amended which reads as under ;- (v) "The appellate authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and, if the tenant makes default in compliance with such an order, then, if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his decree shall be struck off". It is evident that as far as the order with regard to deposit of rent by the Rent Controller is concetnd, it is effective only till the disposal of the petition and where an appeal is preferred, the Appellate Court is to make fresh order with regard to deposit of rent. In Qaroar-uz Zaman v. fthair- |ud-Din and 2 others) (PLJ 1979 Quetta 72) ba ed on the authority reported P.L.D. 19«^9 Stpretne Court page 424, it has been observed that "a close scrutiny of the above provision clearly indicate that an order passed under section 13 (6) of the Ordinance remains effective only upto the time of the final determination of the proceedings before the Controller. The order contemplated by the first part of secteon 13 (6) is of an interim or interlocutory nature and cannot be said to remain effective after the final determination of the proceedings in which it is made". 6. It is thus well established that in order to strike off the defence of the tenant, it was conditioned precedent that the Appellate Court had made directions for deposit of rent and evidently, in the absence of any such direction, the Court of appeal had no power to strike off the defence of the tenant whether he wus appellant or respondent. In result, we would accept this writ petstion and direct that the learned District Judge decide the appeal on merits. It may alto be necessary for him to make an order with regard to the arrears of rent, if any, and payment of future rent. We make no order as to costs. Petition accepted.
PLJ 1985 Peshawar 35 PLJ 1985 Peshawar 35 Present : fazau-e-!lahi khan, J Major ABDUS SAMAD KHANPetitioner versus ATTAUR REHMAN and 2 OthersRespondents Civil Revision No. 25 of 1983, decided on 30-1-1985. Ciril Procedure Code, 1908 (V of 1908)
S. 115Revisional jurisdictionExercise ofConcurrent findings of factsInterference withTrial court reaching positive conclusion against petitioner after taking into consideration entire evidence Material evidence not shown to have not been taken into considera tion nor any misreading of recorded evidence pointed out Held : Concurrent findings fact recorded by two courts below even if erroneous, same not to be liable to interference by High Court while exercising its revisional jurisdiction in circumstances of case. [P. 36] A Mr. S. Zafar Abbas Zaidi, Advocate for Petitioner. Mr. Muhammad Ayaz Khan, Advocate for Respondent. Date of hearing : 13-1-1985. judgmnet Major and Abdus Samad Khan, plamtiff-preemptor, has challenged tiie of judgment decree of the Civil Judge, Bannu dated 16-12-1981 and that of the District Judge, Bannu dated 26-5-1983 whereby his suit for possession by preemption in respect of the suit house was dismissed and appeal against the same rejected. 2 Facts of the case to be briefly stated are that Major Abdus Samad Khan, petitioner herein, instituted the suit of wnich this revision petition arises in the Court of Civil Judge, Bannu, for possession by preemption of house No. 318/E situated in Bannu City allegedly sold in favour of Mohammad Sher and two others through a consent decree dated 6-11-1976 in suit No. 413/1. In the plaint, it was alleged that the suit house was sold to the defendants for the sum of of Rs. 1000/- and that he has got a superior right of preemption on the basis of his being the owner of contiguous property. This suit was instituted on i5-11-1977. The defendant-vendees resisted the suit on several legal and f actual grounds including that of exemption under section 5(c) of the N.F.P Preemption Act. The sale consideration was stated to bs Rs. 1.50.UOO/- fixed and paid in good faith to the vendor. Pleas of limitation and valuation for the purposes of Court fee and jurisdiction were also raised. In support of his case, plaintiff appeared as his own witness and examin d Muhammad Jalil, Social Welfare Department, Barmu, A.W, Muhammad Khan Education Clerk, Ashrafullah and Muhammad Sharif, while Attaullah Khan defendant appeared as his own witness and closed the case for the defendants. The learned trial Judge on taking into consideration the evidence of the parties, decided issue No. 1 regarding the exemption in favour of the defendants-vendees. Rest of the issues, being not relevant for the decision of the case, need no consideration. On the finding given over on issue Mo i the learned trial Judge dismissed the suit. Appeal filed by the plaintiff against the judgment and decree of the learned trial Court was also dismissed by the District Judge, Bannu after holding that the defendants-vend;es were entitled to the exemption claimed under section 5(c) of the N.W P.P. Preemption Act. The learned counsel for the petitioner vehemently argued that the findings of the Courti below given over the issue pertaining to the exemption claimed by the defendantvendees are not correct. According to him, the defendants-vendees have miserably failed to prove that they had abandoned their original residence of village lani Khci or that they have taken a permanent residence at Bannu Citv, as was required for seeking exempt from preemption under the aforementioned provision of law. In support of his contentions, the learned counsel for the petitioner placed reliance on P.L.D. 1964 Peshawar page 140. The learned counsel further argued that there was available on the record documentary evidence in the shape of applications made by the respondents for scholarship to the competent authorities and that of for issuance of Domicile Certificate wherein they have given their addresses to be that of village Jani JChel. This, according to the learned counsel for the petitioner, amounted to mis-reading of evidence rather ignoring the material evidence by the Courts below while giving their decision on the point. The learned counsel also addressed arguments on the issues psrtaining to limitation and preferential rights of preemption of the plaintiff, but as the decision on the issus pertaining to the exemption claimed by defendants-vendees has direct bearing on the other issues, thus these contentions would be adverted to only in case findings of the Court below in this respect is not approved by this Court. In reply to the arguments, the learned counsel for the respondents challenged the main tainability of this revision petition u/s 115 of C.P,C. He contende d that the issue whether the petitioners are entitled to the exemption claimed was purely a question of fact resolved by proper appreciation of the evidence on the record That both the Courts below after proper appraisal of the evidence have arrived at a concurrent findings that the vendees are the residents of Bannu City and, hence no exception could be taken to it ia revisional jurisdiction by this Court. 3. After hearing the learned counsel for the parties and going through the record of the case, I anS of the view that the objections raised by the learned counsel for the respondents must prevail. The learned trial Judge in his elaborate and well-worded judgment has taken into consideration the entire evidence adduced by the parties and thereafter has reached to a positive conclusion that, the defendants were successful in proving that they were the residents of Bannu City. The learned counsel for the. petitioner failed to point out any material evidence which has not been taken intu consideration by the learned trial Judge or hat there had been any mis-reading of the recorded evidence. In the circum stances of the case, the concurrent findings of facts recorded by the two Courts below even if erroneous (though it is not so in this case) would not be liable to interference by this Court while exercising its revisional jurisdiction. 4. Consequently, there is no merit in this revision petition which it hereby dismissed with no order as to costs. (TQM) Petition dismissed.
PLJ 1985 Peshawar 37 PLJ 1985 Peshawar 37 . - [Abbottabad Circuit Bench] Present : faiz muhammad khan, J
GUL DADPetitioner versus NADIR DIN and 2 OthersRespondents Civil Revision No. 24 of 1985, decided on 26-5-1985. NWFP Pre-emption Act, 1950 (XIV of 1950)-
Ss. 4 & 12 Owners of contiguous property - Right of pre emption ofDisputed Khasra numbers situated at considerable dis ance from each oiber and not falling into one blockClaim of re-emptor partially decreed (by dditional District Judge) on ground of his having land contiguous to one Khasra ooly Held : .. ^. Two Khasra numbers in suit falling not into one lot or block, find- " iijg of lower appellate court in such regard to be correct. [P. 39]A Mr. Muhammad Yunax Tanoii, Advocate for Petitioner. Mr. Fida Muhammad Khan, Advocate for Respondents, Date of hearing ; 26-5-1985, judgment The land measuring 87 kanals 16 marlas, represented by Khasra numbers 1806 and 1707, situated in village Salam-Khand, was purchased by Gui Dad through mutation No. 11 jQ, attested on 26-6-79, for an ostensible amount of Rs. 250QO/-, The sale was preempted by Gul Din who claimed that he bemg participator in the mmunities nd appendages k of tae suit land and having Sand contiguous thereto had superior right of ""- preemption over the endee-defendant. It was further alleged in the plaint that the sale consideration paid was only Rs. 5UOO/- and in the sale mutation an inflated amount was entered as sale consideration. 2. The suit was contested by the defendant on factual and ega! grounds, which gave rise to the following issues : Whether the plaintiff has got a cause of action ? Whether the plaintiff has got superior right of preemption ? v (1) Whether a sum of Rs, 25000/- has been paid or fixed actually ? (4) Whether the defendant has made improvements, if so to what effect and extent ?
(5)
Whether the plaintiff is estopped to sue ?
Whether the suit is time barred ?
Relief.
3.
The finding of the learned trial Judge on issue No. 3 was against
''
, the defendant.
On the asis of 5 yearly average the price of the suit land was fixed at Rs. 15840/70. Issue Nos. 4, 5 and 6 were also not roved in the evidence brought on record and were, therefore, decided against the defendant. On issue Nos. 1 and 2, hich were discussed together, the finding of the learned trial Judge was that since both the parties were having land contiguous to different Khasra numbers, therefore, the pre emptor had failed to prove his superior right of preemption over the defendant. Both these issues were, therefore, decided against him. The learned trial Judge, consequently, vide his judgment and decree dated 12-6-84, dismissed the preemption suit filed by the plaintiff, leaving the parties to bear their own costs, 4.
The legal heirs of Quldin preemptor were not satisfied with the result of the suit instituted by their ancestor and they fiied two separate appeals, which were registered as appeal No. 64 13 and appeal
No. 68/13 of the year 1984, in the court of Additional District
Judge, Haripur against the foresaid decree of the learned Civi!
Judge, Both the appeals were taken up together by the learned Appellate Judge, who, \lde his judgment and decree dated
H-12-»4, while partially accepting both the appeals, passed a decree for possession by preemption of the
Jand represented by
Khasra No. 1707 in favour of the legal heirs of the preemptor on payment of Rs.
8174/34, This finding was recorded by the learned
Appellate
Judge ou the basis of admission made before him by both the learned counsel for the parties that the preemptor was having land contigu ous to
Khasra
No.
1707 alone but not to Khasra No. 1806 which was located at a considerable distance from JChasra
No. !707 and with which the vendee defendant was aiso owning contiguous iand.
The learned
Appellate Judge also found the two disputed
Khasra numbers not situated in one block.
5.
The vendee-defendant was not happy over the decision made by tha learned Appellate Judge in partially decreeing the suit against him.
He has, herefore, come up in revision to this court and in the petition tiled by him he has prayed for setting aside the decree passed by the learned Appellate Judge and for restoring the decree passed by the learned trial Judge.
6.
Mr. Muhammad Youoas TaaoJi, Advocate appeared on behalf of the. petitioner and
Mr.
Fida
Mubammad
Khan, Advocate appeared on behalf of respondents;
Since from the evidence recorded at the trial it was not clear as to whether or not the two disputed Kisasra numbers were situated in one biock, Patwari halctn was examined in this
Court as a court witness.
His statement would clearly sh'
PLJ 1985 Peshawar 39 [DB] [Abbottabad Circuit Bench] PLJ 1985 Peshawar 39 [DB] [Abbottabad Circuit Bench] Present': faix muhammad khan & abdul karim khan kunoi, JJ Mir AFZALPetitioner versus DISTRICT EXCISE & TAXATION OFFICER, Abbottabad and 2 OthersRespondents Writ Petition No. 94 of 1984, decided on 21-1-1985. Finance Act, 1V65 (W. P. Act I of 1965)
S. 1 2HotelTax onTwelve out of thirteen rooms on first floor (each room consisting of two lodging units) admittedly offered for accommodating travellersEleven rooms on second floor already leased out to Medical Superintendent, District Headquarter Hospital Such rooms not occupied by 'students' or 'Government officials' Two other rooms on second floor also rented out Held : There being more than 25 units, hotel in queition to be liable to taxation under S. 12 of West Pakistan Finance Act, 1965. [Pp. 40 & 411/4 Mr, Muhammad Tariq Khan, Advocate for Petitioner, Date of hearing : 21-1-3985, order Mian Jamal Shah, resident of Nowshera is owner of a building situated, on Bid Qah Road . Abbottabad, consisting of a ground floor and13 rooms each on first and second floor. The said building was leased out to Mir Afzal, petitioner herein who is running therein a hotel by the name of Mount View Hotel. 11 rooms on the second floor out of this building have been leased out by the petitioner to the Medical Superintendent, District Headquarter Hospital, Abbottabad for accommodating therein doctors who are on house job. The remaining two rooms on second floor have also been leased out to other occupants for different purposes. The 13 rooms of the first floor are however, offered by the petitioner to the travellers who may like to occupy them. One room out of the building is, however, occupied by the Manager of she hotel and the other permanent staff working in the Hotel. The ground floor of the building is used for messing purposes. 2. In pursuance of the provisions contained in Section 12 of the West Pakistan Finance, Act, 1965, thii hotel has been eclared by the concerned authorities of ihe Excise and Taxation Department as liable to payment of tax thereunder and the total tax leviable on 50 lodging units. excluding 2 lodging units occupied by the Manager and the permanent staff of the hotel, has been assessed at Rs. 45751- per annum. The petitioner herein, was therefore, directed to deposit the tax, which order aggrieved him and against which he filed appeal before the Director Excise and Tax ation, N. W F P. (respondent No, 2) who dismissed the same vide order dated 15-10-1984. Having no other remedy available, the petitioner has SJed this Constitutional petition challenging the orders of respondents I nd 2 as being arbitrary illegal, and without lawful authority, thus of no legal consequence, 3. Mr. Muhammad Tariq Khan Tanoli, Advocate appeared on behalf of the petitioner. He contended that since only 13 rooms on the first floor are available for accommodation of the travellers sad since out of these 13 rooms one is permanently occupied by the staff of the hotel, and is not offered to the travellers, the hjtel is not liable to pay tax, having less than twenty-five lodging units, under sub-cJause (ft) of clause (b) of sub-sec tion (5) of Section 12 of the said Act. He aiao contended that 11 rooms rented out to the Medical Superintendent, District Headquarter Hospital , Abhottabad, for the accommodation of house-job doctors shall also have to be excluded in view of the definition of the expression 'hotel' as contained in the Explanation to Section 12 of the said Act. 4. We have considered the arguments of the learned counsel for the petitioner and Snd no force in them 12 rooms out of 13 ooms on the first floor are admittedly offered by the petitioner for accommodating the travel lers as and when they may be required. The record shows that each room consists of two lodging units. The 12 rooms so offered to the travelers would therefore consist of 24 lodging units. There are also 13 rooms on the second floor of the hotel out of which 11 rooms have leased out to Medical Superintendent, District Headquarter Hospital . Abbottabad, These rooms ire occupied by doctors who have done their Graduation from Med cal Colleges and are doing house-job in the Hospital, They are neither to be called 'studenst' of Medical Institutions, nor 'Government officials 5 having not been so employed, so as to fall within the exemption clause contained in the definition of the 'hotel' as contained ia the Explanation to Section 12 f the said Act. Further, other two rooms on the second floor of the hotel have also been rented out and would not attract the provisions of the exemption clause aforesaid. The conclusion, therefore, is that this hate has more than 25 lodging units and is, therefore, liable to taxation unden the aforesaid provisions of Saw. I There being no merit in this writ petition, it is hereby dismissed in limine. (TQM) Petition dismissed.
PLJ 1985 Peshawar 41 [DB] PLJ 1985 Peshawar 41 [DB] Present : abdul khaliq khan & inayat ilahi khan, JJ NATIONAL BANK OF PAKISTAN through Executive Vice President, NPB, Principal Office, Peshawar Cantt.Petitioner versus SHAFIQ AHMAD and 2 OthersRespondents Writ Petition No. 352 of 1983, decided on 18-3-1985. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)- -S 25-AIndividual grievanceRedress ofEnquiry proceedings Propriety of-Examination of Labour Court Jurisdiction of Held : Th-re being nothing in law to prevent Labour Court from examining legality and propriety of enquiry proceedings, and from satisfying itself whether evidence on record warranted order of dismissal, such court to competently examine fairness and propriety of domestic enquiry conducted by Enquiry Officer against employee. [Pp. 44 & 45] & B PLJ 1978 SC 436 rel. (fi) Industrial Relations Ordinance, 1969 (XXIII of 1969) S. 25-A Individual grievance Redress of Dismissal from service Order ofFailure to prove charge as (a} wholeEffect of Account in other Bank not shown to have been maintained by respondent to hide his illegal earning from fraudulent withdrawals- Respondent also not living beyond his financial resourcesHeld : Charge as framed agunst respondent having not been proved (as a whole), order of dismissal not to be justified, [P. 45jZ> & E (Hi) Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (W. P. Ord VI of 196«)
S. I (4) Proviso IEmployees governed by Service RulesAppli cability of Ordinance to Employees of Bank governed by Na tional Bank of Pakistani (Staff) Service RulesHeld : Provisions of ndustrial & Commercial Employment Standing Orders) Ordinance not to be applicable. [P. 45]C Mr, Rahim Badshah Khatak, Advocate for Petitioner. Mr. Muhammad Latif, Advocate for Respondent (No. 1). Date of hearing : 12-3-1985. judgment Inayat Elahi Khan, J.The facts giving rise to this constitutional petition filed by the National Bank of Pakistan through its Executive Vice President, Peshawar , are that Shafique Ahmad (respondent No. 1) was employed as a Cashier and posted at the Parachinar Branch of National Bank of Pakistan . During the period of his employment respondent No. 1 is stated to have fraudulently withdrawn from the Bank some amount in connivance with one Abbas Khan, a Sub-Accountant in the Government Treasury at Parachinar. After the fraud was detected by the petitioner bank, respon dent No. 1 was charge-sheeted on 3-9-1979 to which he submitted his explanation on the same day. An enquiry was, therefore, taken in hand against him wherein he was found guilty of the said misappropriation and, therefore, dismissed from service on 15-7-1980. The order of d smissal from service was challenged by respondent No. 3 before the Labour Court at Peshawar. His petition under section 25-A of the Industrial Relations Ordinance, 1979, was accepted and fresh departmental proceedings were directed to be taken against him vide order dated 25-3-81. Accordii fly fresh enquiry was conducted against him and he was once again found guilty of the charge and, therefore, dismissed from service on 25-6 81. The order of dismissal from service was again challenged by respondent No. 1 before the Labour Court , Peshawar , and vide order dated 25-10-1981 the Labour Court while accepting his petition directed his re-instatement in service with full back benefits. The petitioner's bank feeling aggrieved went in appeal before the Labour Appellate Tribunal, N. W. F. P. Mardan, but the appeal was dismissed on 21-7-1983. Hence the petitioner has invoked the constitutional jurisdiction of this Court. 2. Initially 6 charges weie framed against respondent No. 1 but in this etition we are concerned only with 2 charges /. t. charge No. 2 and charge o. 4 as the learned counsel for the petitioner confined his arguments to hese charges only. Charge No. 2 reads that "on 13-8-1978 he was emporarily deputed for scrolling of Government bills. On the same day Abbas Khan (Sub- ccountant reasury Office, Parachinar) entered the bank with a forged bill bearing the name of Hussain Ali pensioner amount ing to Rs. 990.50. It as his duty to scroll the same whereas he insisted on Mr. Zahir Shah, Clerk of the Branch, to scroll the same with his own band-writing, who was busy to assist the audit team. He was fully inform ed about the background and nature of the transaction and e tried to escape himself from the scrolling of the forged bill". The other charge i. e. charge No. 4 is in the following terms. "It as lso learnt that he maintained bis personal saving bank account in Agricultural Development Bank of Pakistan to hide bis illegal arning from the fraudulent withdrawal of the pension bills. It was also Jearnt that he always lived beyond his financial resources at aracbinar". Amongst others the aforesaid charges were also held proved against respondent No. 1 by the Enquiry Officer. 3. Mohammad Yaqoob Sethi, the Enquiry Officer, in his report dated 15-6-1981 regarding charge No. 2 mentioned above came to the conclusion that "it was established beyond doubt that on 13-8-1978 respondent No. 1 refused ta enter the bill for Rs. 990.50 and wanted to get it entered through Zahir Shah clerk. Thereafter he entered the same in Government scroll and got its ayment from the paying Cashier which amount was later on returned to "the Cashier by Mr. Zahir Shah", According to the Enquiry Officer this was clear evidence of his collaboration with Zahir Shah clerk and Abbas Khan, Sub-Accountant Treasury Office, arachinar, there fore, he wai found guilty of the charge. Regardicg the other charge mentioned above the Enquiry Officer concluded that -'respondent No, 1 rders; Ordinance, 1968, was not applicable to the employees of the National Bank of Pakistan as the bank is carried on under the authority of the Federal Government and it has got its own statutory rules of service etc,, governing its own employees. Reliance is placed on Rules 37 and 38 of the Rules governing the service of employees of the National Bank of Pakistan made by the Central Board under bye-law 18 (1) (iii) of the National Bank of Pakistan bye-laws with the prior approval of the Centra! Government, to contend that under Rule 37 no employee could open or maintain an account with any other bank or banker of any description without the previous permission of the Managing Director of the National Bank of Pakistan and an employee found guilty of infringing any such provision rendered himself liable to disciplinary action including dismissal from service. Regarding the 1st contention it may be mentioned jhat section 25-A (5) of the Industrial Relations Ordinance, 1969 provides that in adjudicating and determining a grievance under sub-section (4), the Labour Court shall go into al! the facts of the case and pass such orders as may be just and proper in the circumstances of the case. It is clear that the Labour Courts had the necessary jurisdiction to satisfy itself as to whether the impugned order of dismissal from service was justified'in law as there was nothing in law tc prevent him from, examining the legality and propriety of the enquiry pro ceedings and to find out whether there was sufficient evidence to warrant the order of dismissal passed by the departmental authority. To support his contention the learned counsel for the petitioner relied on United Distriba-< tors Ltd. v. Z«hid Hussaio (PLJ 1973 Karachi 314=. PLD 1976 Karachi 376) wherein it was held that a Labour Court could not sit as a Court of appeal on the decision of domestic enquiry particularly when no plausible-reason has been shown in the impugned orders justifying interference with the order-passed by the enquiry Officer. Refareice is also made to the case of GrindJays Bank Limited v. Abdul Bazaq Khan (1981 SCMR 441} wherein leave to appeal was granted by the Honourable Supreme Court to examine the question whether the Labour Court had no authority to sit in appeal over the findings recorded by a domestic tribunal. On the oth;r hand the learned counsel for respondent No. I relied on Crescent Jute Products Ltd. v. Muhammad Yaqoob {PLJ 1978 SC 436> wherein after an exhaustive dis cussion of the provisions of section 25-A (5) of the Industrial Relations Ordinance (XXIII of 1969) it was held that ; "In subsection (5) of section 25-A of the Industrial Relations Ordinance XXIII of 1969, it is laid down that in adjudicating and deter mining a grievance under subsection (4), the (Labour Court) shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case". From the language of the statute hereinbefore reproduced it is clear that the Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and in the circum stances of the concerned case it was justified or not, both on merits as well as law. The words "shall go into all the facts of the case" are a clear guide with regard to the wide scope of the enquiry which a Junior Labour Court undertakes under section 25-A " These words indeed have been used with a purpose and have to be given full effect so as to achieve the result desired. These words show that 'vhen a case is brought before a Junior Labour Court, the scope of enquiry is wider than for example the scope of a Tribunal examining only the legality of an order impugned before it The reason is also not far to seek, because as pointed out earlier it was intended to provide a forum to check against arbi-
trary, capricious and camouflaged dismissals." Keeking in view the rule laid 'down in the cited case it is evident that the! Labour Court was competent to examine the fairness and propriety of theJB domestic enquiry conducted by the Enquiry Officer against respondent No. l.| Therefore, there is no force in the contention raised by the learned counsel for the petitioner In regard to the next contention it has been rightly urged by the learned counsel that in the presence of the National Bank of Pakistani (Staff) Service Rules the provisions of the W. P. Industrial and Commercialjc Employment (Standing Orders) Ordinance, 1968 were not applicable to the! employees of the bank as they were governed by the rules mentioned above. However, there is no force in the contention that since respondent No. 1, in violation of Rule 37 of the Staff Service Rules, maintained an account in " another bank without the previous permission of the Managing Director, he rendered himself liable to disciplinary action under Rule 38 and, therefore, the order of dismissal from service was rightly against him. It may be mentioned that respondent No. I was not charge-sheeted simply because he had opened or maintained an account in another bank. Rather the substance of the charge against him was that he maintained his personal saving bank account in the Agricultural Development Bank of Pakistan to hide his illegal earnings from the fraudulent withdrawal of the pension bills and it was also learnt that he always lived beyond his financial resources. From the enquiry report it is evident that the charge as a whole was not proved against respondent No. 1 inasmuch as there was no evidence to prove that the account in the other bank was maintained by respondent No. 1 to hide his illegal earnings from th fraudulent withdrawal of the pension bills or that he lived beyond his financial resources. In the circumstances it would - not be justified to split the charge and hold that since a part of the charge has been proved, respondent No. 1 was liable to dismissal from service as admittedly there was no evidence to prove that the said account was opened by respondent No. 1 to hide his illegal earnings from the fraudulent with drawal of the pension bills or that he lived beyond his financial resources. If the petitioner bank intended to proceed against respondent No. 1 simply for the reason that he had opened personal account in some other bank in violation of Rule 37 ibid there was no reason to allege that the personal
account was opened in the other bank by respondent No.,1 to hide his illegal earnings from the pension bills etc. In the circumstances the harge as framed against respondent No. 1| . does not stand proved and the order of his dismissal was not justified on thisjE score. ' 6. In this view of the matter no fault can be found with the orders impugned in the writ petition and the orders cannot be said to have been passed without lawful authority, The writ petition having no merit is, therefore, dismissed. However, in the circumstances of the case the parties are left to bear their own costs, (TQM) Petition dismissed.
PLJ 1985 Peshawar 46
PLJ 1985
Peshawar 46
Present:
S.
usman
Au shah, CJ
AFZAL KHAN and 21
OthersPetitioners versus
Mian
JNAYATUR REHMAN ar..d lo Others-Respondents
Civil
Revision No 375 of 1983, decided on 15-1-1985, (i)
NWFP Pre-eeaption Act, 1950
(XIV of 1956}
S. 4- Pre-emptionRigfaf
->f
Land --
Sale of
-Attorney of .>wc« authorised to sell suit land and not to .'r-.rqutre any land in exchange thereofSuch attornev also applying to Martial
Law authorities for permission of sale of landHeld ; So-casitd exchange beins:
just 0)ssnoffi?r. sale deed in case given colour nf exchange to frustrate preemptive rights oi' pre-etaptors, [P. 4
]A
(iJ.l
NWFP Pre-effiptlou Act, 1950 (XIV of 1950} 4Pre-emptionRight ofPre-emptors admittedly co-sharer in
Ghair Mumkin Rasia
(contiguous to suit land) Such
Rtuta not thoroughfare for use of general publicHeld :
Co-sharers in such fihair Mumkm Rant a to competently convert it into use So his benefitHeld far.her : There being no legal embargo against cosharers to utilise
-Rusta, their right, of pre-eoaptiou to be established
^uasuit tend. [P, 47]B
PLJ J976
Peshawar
S!
iutinguished.
Mr, Z. Mahfooz Khan, Advocate for
Petitioners, Mr. S. Muhatnmaa Shah Badihah, Advocate for Respondeots, Oate of hearing : !
5-1-1985, judgment
The suit land comprised in Khata Nos. 1182 and 1172 was purchased by the petitioners herein through registered sale deed dated 14-4-1971. This transaction was preempted through £wo rival sui.s and the plea tales by the preemptors (respondents herein) was the same, namely, they are co-sharers in the suit
Khatas, participators is immunit<$» and appendages and owo hod contiguous to the suit kuu! ""he petitioners resisted both
She suits ana ?he stand taken by them in support of thor case was .
twofold, naiBely, () i^.ey became co-sharers in Jbe suit
Khaiaj on the -asis of es« chanae, (2) tiv y also purchased
Abadi and Machinery and as the said
Iran-
action w»s not preempted, the suite of the preeaiptors were hit by the princi ples of partial preemption. Upot> jfce pieacir.gs of the parcies, the learned sria! Judge framed various issues and recorded their evidence thereupon.
Preferring the evidence of preemptors, he granted decres to one " sef of preemptors for 34
Kanals 4
Marios on the ground of co-ownership in suit
Khats
No. I!82 and the other rival set of preemptors was granted decree for 84
Kanals 13
Marias on the ground of contiguity in suit Khata
No.il?
, vfcfe his judgment dated 4-6-1981. The petitioner filed appgg!
in the D strict Court and a learned Addl. District
Judge who heard she appeal concurred in the findings of the learned rrial Judge and dismissed the appeal, vide his judgment dated 15-IO-19S3, Hence this revision i have heard the learned counsel for the parties and perused tbe record, Learned counsel for the petitioners has raised three-fold contention :
(!) that his clients became co-sharers in the suit land on the basis of exchange deed duly registered and the two Courts below were wroi g
:.c disbelieve the said deed, (2.i that the two Courts below overlooked that recording 10 the revenue record, Hhasra No, 8604/3702 on the basis of
-vhioh 'tie respondents claimed co-ownership and contiguity qua the suit land s thoroughfare and even if it a> Sham; let D^h, yet legally the respondents lar.not cUim the right of preemption to the suit land. In support of this cor-ifnUoo, he. rclisd upon aa authority reported to PLJ 1976
Peshawar
I" : o) that aloagvmh 'he sun property his clients had also purchased
Attidi and
Machinery aui. as the sasd pivce of property was not preempted, ihe suits of the preemptors were bit by the principles of pariial preemp tion.
As regards the first contention of the learned counsel for the peti tioners, the same was also raised before me in the connected revision application bearing No 374/84 but was repelled,' vide my judgment of today's date in that case.
It was held with reference to the evidence on re-j cord that the attorney of the owner of the suit land was authorised by thtj
'.Atter to sell tbe suit land and not to acquire any land in exchange thereof.
1
!'<-'e evidence on record also revealed that the attorney had applied to the Chief
Martial
Law Administrator for permission of sale of the suit laud.'
Thus the so-called exchange was just a misnomer while in fact, the xchange deed was a sale deed and was given the colour of exchange to frustrate the preemptive rights of the preemptors.
As regards tbe second contention of the learned counsel for the petitioners seems to have not appreciated the ratio of the authority Said own by the Hon'ble Judges of this Court in its proper legal perspective. A bare reading of the said authority will show that i! a property is a thoroughfare for the use of the general public to the exclusion of none, the preemptors cannot be allowed to lay claim of preemption to the suit land on the basis o! the thoroughfare even if it is
Shamilat
Deh in which the preemptor is co-sharer and is contiguous to the suit iaad. The position in the present case, is, however, discernible.
According to the revenue record, Khasra No. 8604/3702 is
Ghair Mumkin Rasta.
It is concede hs that
Gh
PL J 1985 Peshawar 48 {DJS] [Abbottsfead Circuit Bench] PL J 1985 Peshawar 48 {DJS] [Abbottsfead Circuit Bench] Present: faiz mohammad khan & fazal elabi &.han, jj LAND ACQUISITION COLLECTOR-!!, Tarbela Dam Rese«lemeo£ Organization Wapda Haripur District Ab&onabsd sod 2 OthersAppellants versus SHAHDAD KHAN, deceased (represented by legal heirs) and 2 OthersRespondents Regular First Appeal No, 70 of 1981, decided on 9-4-1985, (S) Laud Acquisition Act, 1894 (I of 1894}
Ss, 18 & 54Court Reference toClassification of land Objection regardingChange in classification of land supported by no reliable evidence-Held : Acquisition Judge committed illegality ia ordering re-classification of land by refyjng upon illegal and manipulated entries made in kkasra girdwari, [P 52\B & C (It) Laad Reyenae Act, 1967 (W, P, Act XVI! of 1967)- S 52 read with Evidence Act, 18/2 (I of 1872}-S. "SS Khasra girdawari- Entries inEvidentiary value ofHeld: No presumption truth though to attach to entries id kHasra girdawari, same to be admissible in evidence under S 35 of Evidence ActHeld further : Suc-b entries must be shown to bave been made by (concerned person in discharge of his official duty in accordance with law before any value be attached to them by court. [P. 5l]A Mr, S, Ibne AH, Add. A. G. for AppellacL Afaulvi Sirajul Hag, Advocate for Respondents. Date of hearing : 9-4-1985, JUDGMENT Fazsi Elsbi Khsis. J.Shahdad and two others aggrieved by the judgment and decree of the learned Acquisition Judge dated 24-5-1980, whereby part of their claim made in the objection petition against Award No. 31 dated 3-12-1: 71 in respect of their acquired landed pro perty was rejected have come in appeal to this Court. The Land Acquisi tion Collector and two others feeling aggrieved by the same judgment and decree on partial acceptance of the objection petition of the aforementioned land owners have also come in appeal. These two appeals bearing R.F.A. No. 50 of 1981 Muhammad Zaman and .? Others v. Government of N.W.F.P. and2 Others and R.F.A. o, 70 of i>80 (Land Acquisition Collector and 2 Others
. Shaft Dad), are, therefore, disposed of by this single judgment. f the disputed khasra numbers which pertained to We relevant period. He also produced 'goshwara' of mutations of sales attested during the period from 2 5-19oQ to 3-5-1967 and from it worked out different averages of different types of land. These are Ex, O. W. 2/4 Ex O.W. 2/5 on the file. He also produced 'Paria Bandohasti 1 copy Ex. O.W. 1/5. Muhammad Zaroan one ')f the objectors appeared as his own witness and re-iterated their claim made in the objection petition. Taus Khan was produced by the objectors to laad support to their case referred to above. On behalf of the Land Acquisition Collector his reader Mohammad Yaqoob appeared and produced the acquisition file and placed on the file copy of Naqhsa Alif as Ex. R.W. I/I. He deposed that the land involved in the objection petition was l Shamilat deh" the compensa tion amount of which worked out by the Collector has been paid to the Cormnittee appointed for the purpose. He further deposed Jhat the land in dispute was 'Ghair Mumkin Sindh' and assessed as such, in accordance with the entries in the revenue record 5. After considering the evidence produced before him, she learned Acquisition Judge basing reliance on the entries in the khasra girdawari referred to above re-classified the following four Khasras mumbers mentioned beiow, to which the objectors confined their claim, a under : Khasra Number Classification Re-Classification by the Area Awarded. Acquisition Judge KlsM 2514 219-9 Ghair Mumkin Gandam Grera Abi «130K Sindh Sindh ...................... « 89 K, 2531 222-4 ,, Gandam Grera Abi =100K Sindh ...... ......... , -122 K 2521 176-12 Gandam Grera Abi -150K Sindh ... . ... = 26 K 2522 63-19 ,, Gandam Grera Abi = 50 K Sindh ...... ..... » 13 K The valuation of different types of land was, however, fixed iu accordance with the judgment of this Court reported in Slier Ahmad Khan and 4 others v. Land Acquisition Collector astd 2 others (P.L.D. 1978 Peshawar page 138). The claim of the objector regarding fruit bearing trees was not accepted. 6. The learned counsel for the objector in support of the judgment of the learned Acquisition Judge as far as related to re-classification of the aforementioned Khasra numbers mainly relied on the entines made so the khasra girdawari for the year 1965-66. It was aruged that consider able portion of the acquired land improved upon and converted into Chak>. but the evidence produced by the objectors has been mis-read and not considered in its true perspective. It was further argued that the objectors are entitled to the compensation of the aforementioned khasra numbers as ChaM type of iand rather than Grera Abi held by the Acquisition Judge The learned Advocate appearing for the Land Acquisition Collector. land covered by the aforementioned khasra numbers was under the river bed till Rabi 1965. It does not stand to reason how all of a sudden objectors reclaimed a large portion of it brought it under the plough in a short period in Kharif 1965. 8. In bis judgment the learned Acquisition Judge made reference to the observation made by the Acquisition Collector in Page 5 f his award regarding the change in the classification of land, however, he ignored the ultimate finding given by the learned Acquisition Collector in his award where he specifically referred to the spot verification carried out bv the Naib Tehsildar Acquisition and by the Collector Acquisition himself in pursuance of obligation raised by some of the landowners. After the spot verification of report was submitted to the Deputy Commissioner for correction of change in the classification of land in accordance with the spot verification. The Deputy Commissioner on the acceptance of the recom mendation ordered the necessary correction in the lassification of the land detail of which is given on page 8 of the award under the caption 'classification of land'. 9. The learned counsel appearing on behalf of the" objector when "aced with the situation was unable to convince us that the hange in the lassification of land was supported by any other reliable evidence. No other point was urged before us. For the reasons stated above we have no hesitation in holding that the learned Acquisition Judge has committed illegality by basing reliance on 'he illegal and manipulated entries made in tne khasra girdawari while ordering re-classification of the land and holding the objectors in hissadan possession of it. We, therefore, accept Regular First Appeal No. 70 of 1981 (Land Acquisition Collector v. Shahdaad Khan and others} set asids the judgment and decree of the learned Acquisition Judge and hold that the Land Acquisition Collector has correctly classified the iand of the objectors while making the award. Consequently Regular First Appeal No. 50 of 198! (Muhammad Zaman Khan and others v, Land Acquisition Collector) stands dismissed. There shall be no order as to costs in both these appeals. (TQM) Order accordingly.
PLJ 1985 Peshawar 52 [DB] PLJ 1985 Peshawar 52 [DB] Present: alt hussasn qazilbash & nazir ahmad bhatti, JJ NASIM JAVEDAppellant versus NATIONAL BANK OF PAKISTAN , I.I. Chundrigar Road . Karachi through Manager, Sadar Road , Branch, Peshawar Cantt.Respondent FAO No. 1 of 1984, decided on 31-3-1985. (i) Civil Procedure Code, 1908 (V of J908)
O. XVII, Rr. 3 & 2Failure to appear and produce evidence- Effect of Party granted adjournment on his own request for producing evidence not only failing to do so but also committing default in appearance on relevant date Held : In case of there being sufficient material available on record, court to decide suit forth with on merits by proceeding under R 3 of O. XVII, CPCEntire evidence of respondent in case already recorded by trial court Held : Only rule 3 being applicable in case for due to default in appearance and non-production of evidence, trial court proceeded correctly under that rule in finally deciding suit.[P, S5]A PLD 1953 Kar. 356 ; PLD 1965 AJK 18 ; PLD 1971 SC 434 ; PLJ 1981 SC 838 ; PLJ 1969 SC 270 ; / IR 1918 Mad. 143; AIR 1932 Lab. 477 & AIR 1964 Kerala 99 ref. (ii) Civil Procedure Code, 1908 (V of 1908) O. XVII, R. 3, O, IX, R. 13 & S, 96Failure to appear and produce evidence-Effect ofDecree passed by courtChallenge toTrial court finally deciding suit on merit by proceeding under O. XVII, R 3, CPCAppellant, however, instead of filing appeal against decree moving application to trial court for setting aside ex-parte decree Held : Application before trial court for setting aside decree (by treating it as ex parte decree) to be misconceived. [P. 56]# Mr. Hidayatullah Khan, Advocate for Appellant. JJaji Maqsood Ahmad, Advocate for Respondent. Date of hearing : 12-3-1985. judgment Nazir Ahmad Bhatti, J.The facts of this first appeal are very simple. Firm Javed Ice Factory, of which the appellant Nasim Javed is a partner, had obtained loan from the National Bank of Pakistan, respondent herein by hypothecating the Factory alongwith its building and land thereunder on 17-7-1976. The loan was not paid back to the respondent and so it was constrained to file a suit under Order 34 Rule 4 C. P. C. against the Factory in the Court of Special Judge, Banking Companies, N. W. F. P., Peshawar . The appellant herein had contested the suit but during the proceedings before the learned trial Court, he absented himself off and on but utimately the evidence of the respondent herein was recorded on 18-7-1983 and the case was posted to 3-8-1983 for recording evidence of the appellant herein. The case was adjourned by the learned trial Judge 4/5 times at the request of the appellant herein but ultimately on 11-10-1983, the appellant neither produced evidence nor appeared in Court and the learned trial Judge closed his evidence on the said date under Order 17 Rule 3 C. P. C. and decreed the suit of the respondent herein on 12-10-1983 taking into consideration the evidence already on record. The appellant herein presented an application to the learned trial Judge for setting aside the said decree but that application was dismissed on 7-12-1983. Hence the present first appeal. 2. The only point relevant for the purposes of the present appeal is whether the provisions of Rule 2 of Order 17 C. P. C. or of Rule 3 were applicable. It is admitted that on 11-10-1983 neither the appellant herein nor his counsel was present -before the trial Judge nor his evidence was available. Mr. Hidayatullah Khan, learned counsel for the appellant, has contended that as the appellant herein was also absent on the date in question, the trial ourt should have prec^ed?^ under Rule 2 of 17 C P. C. and not under Rule 3 thereof. On the contrary, Haj Maqsud Ahmad K.ban, learned counsel for the respondent, has contended that 'sufficient material was available on the record of the trial Coint to effecttively decide the suit and the learned trial Court correctly proceeded wader Rule 3, 3. As such the only question relevant for the purposes of the present appeal is whether, in the circumstances of the case, Rule 2 of Order 1? C. P. C, was applicable or Rule 3 thereof. 4, Both the aforesaid rales have been subject matter of interpretation by the superior Courts since very eariy ttnu-s a-ad Mr Hidayatuilan Khan ts?s produced many of those cages' beiore us co establish his point of view. n the case of 'Parativatii Bhayaakaraai ricbswesm vs, Kamisetti Sreeramuta aed tturs' A. i. R, !9& Mi--,:.ras 14j), it was Iieic that "if the part fails to appear, R, 2 applies and Court should no! assume 'that he is guilty f default and apply use stringent provisions of R. 3, R. 3 applies only to cases whera sue parties are present and have o satisfied the Court as to the existence of any adequate reason for their nos having done what they were directed to do " jb ne case of Madan Gopai verfu; BndbB'(A. !. R. 1932 Lahore 477), it was held liiat "wnere a party has taken time to produce vidence and on the date fixed for hearing of that evidence he is sbser>» the proper course to follow is to ass aa ex parts decree nd vot .< '-"-der imdff O. 17 R. 3. The words 'make such order as it thinks fc,' ,. s7 R. 2 do not include an order xsadcr . In such a case, ev:>; >; tae Court purports to deliver judgon merits, tfee order is to be treated as as ex pane decree or he setting aside of which the pnx:edu's laid down in O. 9, R, 13 is to be followed". In P. GwfiRds Menon son of skshnsI absms ftit-J another^ vs. Vimlaksid Aiama and others' [A. i. R, 19b4 KeraU 99 (V 5'l C. 19], it was lislo fhat where t»sne had been granted by the Court to the defendant tc produce his evidence and ifee defendant oot only failed to produce any '.'ioence, oat both the defendant and his cousjse! failed to appear in Court aaci the Court decreed the suit upon coastderation of the laintiff's evidence, chough she judgment purported to be one wnttec cm the available evidence in the case a contemplated m Order 1 / Rule 3 !he disposal was virtually oas under Order 17 Rule 2," 5, Tat re are many reported judgments of superior Courts of Pakistan as «fll. fa Jhtcase d 'AbisI Sssfc^ai 1 vs. Afc4ui StasooF [P. L, D. 1963 {W. f. } Ku-a.., i 3i';-j f II wai heid ,tia,i "Rules 2 anu 3 of Order XVlI, C. P. C,, S90« i;-a not sn conflict with sacL oioer, nor are they mutually exclusive. The di^Jnction between rust 2 and rule 3 of Order XVII is that while rule 3 sppiies to hearuigs adjourned at the instauce of the Court, rule 3 applies to hearings adjourned al the instance of a party, io whom time has heeo allowed to do some act to funhcr the progress of the s.-i/it, but who has defaulted. There is yet another di&tmclsou between the rules. Where there are no materials cd iba record, the propei procedure io be followed would be that laid dowc in rale 2, but if there arc materials on the record, the Court ought to proceed under rule 3. To apply the procedure, therefore, laid down in rale 3 to a case, tiscse must be the presence of both the elements; namely, (ij the adjournment must have t the initaess of a party and 12;,, shere iairn be material oa toe 1. There is yet another aspect of the case. The suit of the respon dent herein had been finally decided on merit by the learned trial Judge because he had proceeded under Order 17 Rule 3 C. P. C. In such a situation the appellant herein should have filed an appeal against the said decree and should not have moved an application to the trial Court for setting-aside the ex parte decree. The application of the appellant herein before the trial Court for setting-aside the decree by treating it as an ex parte decree was also misconceived. 8. Finding no merit in this appeal, we would dismiss it. However, we will make no order as to costs at intricate points of law were involv ed. (TQM) Appeal dismissed.
PLJ 1985 Peshawar 56 [Abbotttbad Circuit Bench] PLJ 1985 Peshawar 56 [Abbotttbad Circuit Bench] Present : abdul karim khan kundi, J JEHANDAD (deceased) represented by legal heirsPetitioner versus MUHAMMAD ASLAM KHANRespondent Civil Revision No. 195 of 1977, decided oa 24-4-1985. (i) Civil Procedure Code, 1908 (V of 1908)
O. XLI, R. 23Appellate courtRemand of case by consent of partiesHeld : Compromise remand order being contract between parties super headed by command of court, same not to be super seded except by way of application under S. 12 (2), Civil Procedure Code, 1908 or review or by higher forum in appeal or revision on ground of unlawfulness, [P. 59]^1 (ii) Civil Procedure Code, 1908 (V of 1908)
O XLI, R. 23Appellate courtRemand of case by Effect of Additional District Judge reversing findings of trial court on issues of superior right of pre-emption, limitation and estoppel Case, how ever, remacded to trial court for ascertainment of value of suit land with direction to pass decree against defendant on payment of price determined as suchOrder of such court also maintained by High Court with modification that trial court also to determine question of ownership and location of certain KhrasraHeW : Proceeding to contrary conducted by trial and appellate courts after remand order of High Court to be simply ignored. [P. 60]fi (iii) NWFP Pre-emption Act, 1950 (XIV of 1950)
Ss. 4 & 12Pre-emptionRight ofImmunities and appendagesParticipation inSuit land as well as land of one of parties irrig ated by same water channelsHeld: Mere fact of suit land and land of any party being irrigated by same water channels not to be per missibly employed in offence or defence as right of preemption within meaning of such right based on participation in immunities and appendages. [P. 61]C PLD 1954 Peshawar 99 rel. Mr. Ghafran Khalid, Advocate for Petitioner. Mr. M. M. Idris, Advocate for Respondent. Date of hearing : 24-4-1985. judgment /\n oral sale of a land measuring 84 kanals 6 marlas situate in Khasra Nos. 41, 119, 121 and 125 in village Bherkund Otal, District Mansehra made in favour of Jehandad petitioner for an ostensible price of
Pi J 1985-Peshawar 61
Pi J 1985-Peshawar 61
[Abbottstbsid
Circuit Bench]
Present
:
faiz mohammad khan, J
KHANiZAM AN-Petitioner versus
M. MAQSOOD KB AN and 2 OthersRespondents
Writ
Petition No. 82/76, decided on 2-2-1985, (i) Constitution of Pakistan, 1973
-ArL 199Writ petitionRepetition ofGround not urged in first petitionAgitation ofGround available not taken or urged in first constitutional petition before High Court and Supreme Court
Held : Ignorance of such ground being no valid and iega! excuse petitioner not to be allowed to agitate same in subsequent petition between same parties in second round of litigation. [P.
66}B
(ii)
Evacnee Property &
Displaced Persons Laws. (Repeal) Act, 1975 (XIV of 1975)- r-Ss. 2 & 4Evacuee lawsRepeal ofEffect ofFinal order made by competent suthoritv jn f§5| resulting in Jrausfer of disputed to respu .-i -Petitioner, however, re-agitating matter on framing of Schorrs .o I of 1976 for disoosai of available properties-
Held Training of scheme not to furnish new cause of action to fife petition before designated authority under scheme Held farther: Act
(XIV of 19?5) having aimed at closing chapter on«e for all, reopen ing of matter not to be in consonance' wstb policy
"trnderlyicg repeal oftvacuee laws. [P. 66]0 A
E
(fit)
.Proof of >Facts proving fraud not found in case HaM : Igno rance or lack of knowledge (of departmental authorities
;,f relevant policy decision) sirap'.ieitsr not tc? soast'Uue fraud, [Pp. 65 & 60 J .4
(i?) Settlement & fitehabiHtaiiaa Ms««s~
'Past asd clossd transaction
Re-opening of Fio-a! order mads by competent authority resulting in transfer
«f dispti? d plot to respondent after realisation of transfer price frosn him
Held: Rights vesting in respondent aot to be taken a#ay hy w-opsning matter after lapse of more thaa S 2 "yean. (when relevant law whereunder transfer took effect already stood repealed). [P. 6]ftC
Malik Fazal-e~Hus$a!n f
Advocate for
Petitioner.
Respondent No. 1 10 person.
Date of bearing : 2-2-1985, - judgment
The dispute between the petitioner and rcspoadent Maqsood Khac relates to plot No.
1834/C, situated In Mohahab Kariiapura, bbottabad, which originally was the property of one rood
Chand, who "having become vacuee on the partition of the Suo-Ccmtinent left it ehind o be litigated about between various claiHwats wb& joined litigations at various stsge on different dates, the ^tetitt-mer hsrem omiog iato picture for the first time on S4-5-l%8. The first ro«iw of litigation bt'wesa fhs parties had ended in the year 19 15 hen the petition fo-r leave to
Appea' agaiost the order of the H; gh Court was disrated by ibs Supreme Court oq the
I5(h of October, 975. Thereafter, howerer, to the goad or bad luck of the parties, in pursuance of Policy decision fakec by the , Government at ederal level, the
Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975-wai ptotculgated wbereu^dsr Schtu'is Ho. j was framed by he
Provincial Government in the year 1970 for the O'smjsa! of U? ba^ Evacuee
Proper;;/ v/bivl- b?»a noi ;'ct bees r3Bsfc?.T«d to iay pefsors or lor toe transfer of wb ,'- rto pro« iicg ;oiier, Pishawar Divi&ioD. P«shaar against the order dated
!-9'0 a
!
"i>res;ii
PLJ 1985 Peshawar 1 PLJ 1985 Peshawar 1 [Abtottatad Circuit Bench] Present : faiz mohammad khan, J Mst. SIKANDAR JAN and S3 OthersPetitioner versus ABDUL GHANI and II Others -Respondents Civil Revision Ho. 63 of 1979, decided on 31-3-S985, (!) Civil froeetee Code, 1908 (V of 1908) S. 115 High Court Revisional jurisdictioa .of Exercise of ~ Finding of factInterference wishHeld : Finding of first appellate court on question of fact being final, same not to be interfered with in revision unless some jurisdictiona! error be pointed outFinding of fact arrived at by ignoring or misreading material evidence or same shown to be based on extraneous considerations Held : Revisional court to be competent to disturb such finding of fact reached by first appellate court. [P. Tl]A (ii) Civil Procedure Code, 1908 (V of 1908} S. 115High CourtRevisional jurisdiction of-Exercise of Lower appellate court drawing wrong inference from docu mentary evidence and mis reading evidence brought on record Court also proceeding on wrong assumptions and basing its finding on extraneous considerations--Held : Finding of such court not to be maintained (In revision). [?, 73]/> (iii) Cftil Procedure Code, 1908 (V of i908)
S. \~-Res-juaicata Rule of Applicability of Controversy between parties in respect of ownership of suit land not determined by judicial finding in previous suitSuit land also ultimately coming in possession of defendantsHeld : Withdrawal of former suit by ancestor of defendant not to operate as res judicata against him or his successors. [Pp 16 & TJ}H & K (It) Civil Procedure Code, 1908 (V of 1908)
O XH S R, 6. Admission by one defendantEffect of oa other defendantsHeld: Any admission made by one of defendants in suit litigating independently of others to only bind such defendant and not othersTitle though derived from cotnmoa ancestor, defendants litigating independently (of each other)Held : Admission by one defendant not to be taken as proof of fact admitted by him as against others. [P. 73]C , (t) Evidence Act, 1872 (I of 1872} S, 114, Illustration (g)~EvidenceWithholding ofPresumption re gardingPerson in actual cultivating possession of lan-d produced by plaintiff'sHeld : Presumption that such person, if not produced, (would) not support claim of plaintiffs to be raised. [P. 741 £ (vl) Evidence Act, 1872 (I of 1872)
Ss. 114 & 137Cross-examination Failure to put specific questionEffect ofCategorical statement (regarding former uit having been withdrawn because of plaintiffs'having given up their claim) made by attorney of defendantsNo question put to ttorney in this regard by plaintiffs nor any contrary suggestion made to him Held : Fact categorically stated by attorney to be eemed to have been admitted by other party. [P, 76]J (vii) Evidence Act, 1872 (I of 1872) S. 115 EstoppelPlea ofAncestors of defendants not shown to have persuaded or made plaintiffs to act in manner detrimental to their interest by his act, omission, conduct or representationHeld : Necessary ingredients of estoppel being conspicuously absent, plea of estoppel to have no substance. [P. 77]L (vlil) Land Revenue Act, 1967 (W. P. Act XVII of 1967)
S 52 Jamabandi Entries in column of lagan Effect ofPur chasePlea of -Evidence regarding purchase not roducedHeld : Respondents not to succeed on plea of purchase on basis of mere entries in column of lagan in- jamabandis eld further : Entries in jamabandis to such effect not to be sufficient to warrant decree. [P. 1}B (ix) Land Revenue Act, 1967 (W. P. Act XVH of 1967)
S. 52Khasra girdawariEntries in Construction of Person under whom tenant held cultivating possession not mentioned in khasra giraawari "Trespassers" also failing to prove alleged sale in their favourHeld : Entry in khasra g/r^awsri to be read in favour of actual vendees. [P. 74]F (x) Adverse Possession
Proof ofPlaintiffs failing to prove their continuous possession of land for more than 12 years before institution of suitSuch posses sion also permissive in nature and not adverse to rightful owners- Held : Mere entry in column of lag an (of jamabands) showing plaintiffs as paying no lagan on basis of claim of purchase not to clothe them with title hostile to rightful owners. P. 75 have come to this Court in revision, 6. Sardar Bahadur Khan, Advocate appeared on behalf of the petitioners and Qazi Abdur Rashid, Advocate appeared on ehalf of the respondents. They were heard aad the record of the ease perused with their assistance. 7. While confining his argument to issue numbers 1, 7, and 8, the learned counsel for the petitioners argued hat the learned lower Appellate Judge arrived at erroneous conclusion on material issues by mis-reading and aon- eading of material documentary and oral evidence brought on record. He contended that the inference drawn y the learned lower Appellate Judge from the documentary evidence, particularly the revenue record, was also wrong being he result of mis-reading and non reading thereof. His contention was that exactly as the respondents had failed to bring any onvincing evidence en the record to show that th<s disputed land bad been purchased bv their ancestor Din Mohammad from Abdur Rehoiaa, the ancestor of the petitioners, so had they failed to bring cogent evidence on the record in proof of the plea of adverse ossession set up by them. Ihe learned counsel contended that for aiS these reasons the findings of the learned lower Appellate udge on issue numbers 1, 1 and 8 were in-correct and those of the learned trial Judge were correct. He urged that Ihe decree of the earned lower Appellate Judge, having bssn based oa incorrect findings may be set aside and that of the learned trial Judge estored. In his endeavour to pursuade me to accept his assertions, the learaed counsel for th,e petitioners took me through the ntire evidence brought on record. The learned counsel for the respondents, on the other hand, argued that the findings of the learned wer Appellate Judge on the issues mentioned above were correct, had the support of the evidence, both oral and bv his father from the ancestor of the petitioners. The other witness produced by the respondents was Mir Azam s/o Kala who was a witness to the fact that he was cultivating the suit land on behalf of the respondents. He has not uttered a word about the sale of the suit land by the ancestor of the petitioner in favour of the ancestor of the respondents. The other witness produced by the respondents was Hayat Mohammad. He had allegedly constructed 'bandi' in the suit land for the ancestor of the respondents. He only made a casual mention of the sale in bis statement while referring to the possession of the respondents on the suit land. He was not a witness of the sale transaction. This evidence, in my view, was not sufficient to prove the purchase of the suit land by the ancestor of the respondents from the ancestor of the petitioners. 10. The learned first appellate court decreed the suit in favour of respondents mainly because they were shown in the revenue record as in possession of the suit land and entries in column of lagan with respect to them were of 'bila lagan batqrar Hai\ While so deciding the learned first Appellate Judge gave preference to entries made in column of lagan over the entries made in column of cultivation, although no documentary or cogent oral evidence was brought on record in support of entries in column of lagan. The inference so drawn from the revenue record was against the law laid down by the Supreme Court in the authorities already referred to. The learned first Appellate Judge also mis-directed himself while holding that the counsel for defendants (petitioners herein) had admitted that Mir Zaman was in cultivating possession of the suit land. The record, atleast, does not speak of any such admission having been made by the counsel for the defendants. Much weight appears to have been attached by the learned first Appellate Court to the statement of Mir Zaman who claimed to be in cultivating possetsion of the suit land on behalf of the respondents. The revenue record, to which I would refer later while dealing with the question of adverse possession, does not support the claim of Mir Zaman in its entirety. Further, if it be assumed without conceding that Mir Zaman was holding possession of the suit land on behalf of the respondents, this fact alone did not constitute sufficient proof of the factum of sale of the suit land by the ancestor of tha petitioners in favour of the ancestor of the respondents. It has been admitted by Abdul Ghani respondent in his state ment ia courS that the ancestor of the petitioners was son-in-law of the ancestor of the respondents and that in former's absence the latter had been looking-after his property. In such circumstances, Mir Zaman's bolt ing possession of ihe suit land on behalf of the ancestor of the respondents was not of much significance. The learned first Appellate Judge also drew a wrong inference from the plaint of the former suit between the parties, the copy of which is on the record and is Ex PW 2/6, No doubt, therein it was mentioned that without the consent of the plaintiff (ancestor of the petitioners) the respondents had got entered a sale mutation ia respect of the suit land in their favour which was later rejected, but such recital in the plaint could not be termed as admission of sals mads by the ancestor of the petitioners, nor could mere entry of sale mutation at the instance of opposite party be deemed as evidence of sale, as was held by the learned lower Appellate Judge. The fact that the former suit instituted by the ancestor of the petitioners against the respondents Abdur Rehman and others was withdrawn by him on the basis of compromise did not prove the sale of the suit land by the ancestor of the petitioners in favour of the ancestor of the respondents. The order of the court Ex. PW 2/7 and the The entry with respect to them was that of tenants but in column of lagan the ons of Haji Din Muhammad were shown as holding posiession -bila lagan bataqrar bai'. In the jamabandi of 1957-58 entry with espect to the vendee and the sons of Haji Dm Muhammad was repeated both in column of cultivation and in column oflagan, but nstead f Mira the land was shown to be in cultivating possession of Rehmatuliah s/o Ghulam. The jamabandi of 1960-61 contained some ntries with respect to cultivation column as well as lagan column, in the jamabandi of 1964-65, however, this land was shown in ultivating possession of petitioners as 'khud kasht', In the khasra girdawari this Khasra number was entered as in possession of the etitioners who were also the vendees thereof. In the girdawari of Kharif 1968, however, one Sadiq s/o Mir aman, caste Dhoond, was recorded as in possession of this Khasra number under the vendees and the same ntry continued upto Rabi 1973. In the girdawari of Kharif 1974, however, the respondents were recorded as in ossession through the same Muhammad Sadiq who was holding possession of^this land as a tenant under the petitioners. rom the perusal of the revenue record it becomes clear that from 1964 65 onward the major portion of the suit land (Khasra Mb. 1335)came to be possessed by the petitioners who were its vendees as well.Muhammad Sadiq was in cultivating possession hereof under them and all of a sudden, and without cogent proof, in the two harvests preceding the institution of this suit, the espondents managed to get themselves entered in the khasra girdawari as in possession through the same Muhammad Sadiq. t is pertinent to note that Muhammad Sadiq who was in actual cultivating possession of this Khasra number was not produced by the espondents, who wsr; plaintiffs and on whom the onus lay, as theirwitness ac the trial. This would certainly raise a presumption gainst themto the effect that had Mohammad Sadiq been produced by them he would not have supported their claim. Instead of him, he respondents produced at the trial his father Mir Zaman, who was not in actual cultivating possession of this land. The tatement of Mir Zaman, besides being a bundle of lies, was of no help to the respondents case because hg was not in actual ultivating possession of this land. I am, therefore, of the view that from 1964 65 onward Khasra number 1395 has remained in ontinuous possession of the petitioners who were its vendees and the entry of the names of the respondents in the khasra irdawari f Kharif 1974 and Rabi 1975 being without any basis was of no legal value. 12. Now I take up Khasra No. 1356. In the Settlement record of 1948-49 and the jamabandi of 1952-53 entries in column of cultivation and in column of lagan with respect to this Khasra number are the same as in respect of Khasra number 1335. In the jamabandis of 1957-58 and 1960-6! the entries as regards the parties to this litigation are the same as in respect of Khasra number 1335, but the land was i<j actual cultivating possession of Mira son of Faizu. In the jamabandi of 1964-65, however, entry with respect of Mira s/o Faizu disappeared and Jhis land was shown to be . possessed by the sons of Haji Din Muhammad. In column of lagan they were shown as holding possession 'bila lagan bawaja bai'. In the girdawari of Kharif 1966 Mirzaman s/o Kala, caste Karra', was recorded to be in cultivating possessson of this land as a tenant. It was not mentioned in the khasra girdawari under whom he was holding possession. Such entry, in my humble view, shall be read in favour of the actual vendees and not in favour of the trespassers who failed to prove alleged sale in their favour, the present form. The rinding of the learned lower Appellate Judge on issue No. 2 is also not maintainable. 20. In the resnlt, while partially accepting this revision petition, I partially set aside the judgment and decree of the leerned lower Appellate Judge and restore those of the learned trial Judge qua the share of the petitioners in the suit land. As respects the shares of Fazalur Rehman respondent, the judgment and decree of the learned lower Appellate Judge shall stand on the basis of his having confessed judgment in favour of the respondents. In the circumstances of the case, however, I shall made no order as to costs. (TQM) Revision partially accepted.
PLJ 1985 Peshawar 78 PLJ 1985 Peshawar 78 Present: S. usman ali shah, CJ AJAB DIN (deceased) represented by legal heirs Petitioner versus MUHAMMAD SHAH and 8 OthersRespondants Civil Revision No. 249 of 1979, decided on 18-9-1985. (S) Limitation Act, 1908 (IX of 1908) -~S 3Lirr.StationBar of-Common predecessor of parties dying in 1922Petitioner never remaining in possession of any part of suit house Held : Suit brought by petitioner long after period of 12 years to be patently hit by limitation. [P. 19]B (if) Acquiescence
Doctrine ofApplicability ofCommon predecessor of partiesdying in 1922Petitioner never remaining in possession of any part of suit houseRespondents also not shown to be in possession of suit house with petitioner's permissionPossession of respondents even not questioned for about fifty yearsHeld : Petitioner having acquiesced in ownership of respondent qua suit house, no share in same to be subsequently allowed to be claimed [P. 79]C (iii) Co-sharer
Rights ofProperty jointly owned by partiesClaim to after fifty yearsPredecessor of parties dying in 1922Petitioner never remaining in possession of any part of suit house (left by his predecessor)Such property not remaining lying ladle and barren all along nor same shown to be incapable of possession Held : Contention that every co-sharer to have right to claim his share until same be partitioned not to be available to petitioner (in hi» suit filed about 50 years after death of his predecessor). [P. 19]A Mr. Z. Mahfooz Khan, Advocate for Petitioner. Mr. Abdur Rehman Khan, Advocate for Respondents, Date of hearing : 27-3-1984. judgment Ajab Din petitioner herein brought suit for possession of the suit house by partition. He alleged that the suit house was owned by Mushahidin who was the predecessor of the parties. After the death of Mushahidin in 1922, the petitioner sold 4 Marias and the remaining 7 Marias in the suit house is still due to him as his share. The respondent contested the suit. The learned trial Judge framed issujs and recorded evidence of the parties. On examination of the evidence, he found that the suit house belonged to the common ancestor of the parties and as it had not been partitioned, it is liable to be partitioned between the parties. He further found that the petitioner's share in the suit house comes to 11 Marias but he sold 4 marlas out of his share, the refore, be is entitled to 7 marlas in the suit bouse. He did not agree that Shan Law is applicable in this case He, accordingly granted a preliminary decree in favour of the petitioner, vide his judgment dated 16-1-1978. The respondent was aggrieved by this judgment, .therefore, he filed appeal in the District Court and a learned Add!. District Judge who heard the appeal accepted the same on the ground that the suit of the petitioner is barred by limitation, vide his "judgment dated 28-5-1979. Hence this revision application. I have heard the learned counsel for the parties and perused the record. It is clear that the learned trial Judge had granted decree in favour of the petitioner without adverting to the legal position, as regards limitation, in a case of this nature. Mushahidin, the predecessor of the parties died in 1922 and according to the record, the petitioner never remained in possession of any part of the suit house. It is conceded that in every civil natter the question of limitation can be raised. The learned counsel for the petitioner has, however, contended that asthe suit house belonged to the predecessor of the parties and as after his death it was not partitioned, the parties become co sharers in the same and unless it is partitioned, every cosharer has the right to claim his share. This contention would have been available to the learned counsel for the petitioner if his client had been in possession of the suit house or the suit property was as such not capaole of possession and was lying idle and barren all along. This is not the position in the present case. The parties are governed by the Shariai Act and even though Musbahidin, the common predecessor of the parties died before the enforcement of ihe said Act, yet the petitioner cannot claim applica tion of customary law in this case, as NWFP Muslim Personal Law (Shariat) Application AcJ (VI of 1935) is retrospective in effect. A some what similar case also came up before this Court in a case reported in PLD 1961 Peshawar 9 and it was held as under : "If the Law of Limitation prohibited the entertainment ofclaims after 12 years of the accrual of the right upon death the laims will cease to be entertainable. The Customary Law heirs who succeeded as eirs and remained in enjoyment of the estate for over 12 years will be held to have matured their irrevocable title to the eceased's estate by prescription". The learned counsel for the respondent also pointed out that all the legal heirs of Ivlushahidin have ot een impleaded as parties in this case and his some legal heire also sold their shares to strangers. His submission, herefore, is that on this score also, the suit of the petitioner is legally defective. I do not fee! called upon to attend to this submission of the learqed counsel for the respondent, as the suit of the petitioner is barred by limitation. It is not disputed hat he common. predec:ssor ofthe parties died in 1922 and as thereafter, according to the evidence on record, the petitioner ever remained in possession of any part of the suit house, the present suit having been brought by him long after the period f 12 years, it is pascntly hit by liraitition. E/en otherwise, thepetitioner had no case on merit. Ha was unable to show by any evidence worth-the-nanu that the respondent was in possession of the suit house with his (petitioner's) permission. There is. hsrefore, no escape from this conclusion that the petitioner had acquiesced in the ownership of the respondent qua the suit house and s he respondent is in possession of the suit for decades and his possjssion was never questioned, the petitioner cannot now be allowed to laim any share in the suit house. As a result, this revision application is dismissed with no order at to costs. (TQM) Petition dismissed.
PLJ 1985 SC (AJK) 1 PLJ 1985 SC (AJK) 1 Present : sardar said muhammad khan & sher zaman chaudhry, JJ INAYATULLAH KHAN-Appellant versus Cpt. (Retd.) INAYATULLAH KHAN and Another-Rcspondents Civil Appeal No, 12 of 1984, decided on 16-1-1985. (i) Azad dammu & Kashmir Local Councils (Election) Roles, 1983
R. 11 (3) ProvisoPresiding OfficerEntrustraent of functions of Mode of-No particular mode of entrustment of functions by Presiding Officer to Assistant Presiding Officer not prescribed (in rele vant rules)Held : Performance of functions of Presiding Officer by Assistant Presiding Officer in presence of former with his implied or express consent or approval to be sufficient to fulfil requirement of proviso to sub-rule (3) of rule 11. [P. 3]A (ii) Azad Jammo & Kashmir Local Councils (Election) Rales, 1983-
Rr. 35 (d) & 11 (3) Proviso - Ballot paperSignature of Presid ing Officer on - Assistant Presiding Officer Entrustment of function to Held : No particular mode of entrustment of function having been prescribed, Assistant Presiding Officer to be empowered to sign ballot papers with express or implied approval or consent of Presid ing Officer. [P. 4]B (Hi) Azad Jammu & Kashmir Local Councils (Election) Rules, 1983
Rr. 41(2)& 35 (d)VotesExclusion ofBallot paperSigna ture of Presiding Officer on front side ofEffect ofBallot papers required to be signed on back sideHeld : No penalty having been envisaged for omission, signatures of any of relevant authorities on front side of ballot papers not to be visited by penalty. [P. 1]E (iv) Election disputes 'ElectionProcedure for holding ofRules regardingBreach of No paudUy providsd for breach of any rq!?, iastra^ttcjQ or Uw prescribing procedure for holding electionHeld : Election not to be rendered invalid for such breach. [P. 6]C PLD 1966 Lab. 794 ; PLD 1967 Lah. 699 ; PLD 1982 Kar. 872 ; PLD 1966 Kar. 434 ; PLD 1966 SC 492 ; PLJ 1974 SC 73 ; PLD 1969 Dae. 571 ; PLD 1971 Lah. 737 ; PLJ 1984 Lah. 420 ; PLJ 1984 Karachi 1 ; PLJ 1984 Lah. 367 & 1984 CLC 1472 ref. (t) Interpretation of Statutes 'Statutory provision,-Word|,not appearing inImport ofHeld : Words not appearing in statutory provision not to be imported therein (merely) on basis qf logic by referring to different provisions of same statute. [P. 6]£> Mr. Muhammad Sayab Khalid, Advocate for Appellant. Raja Muhammad Aslam Khan, Advocate for Respondent No. 1. judgment Sardar Said Muhammad Khan, J.This appeal, by leave has been directed against the judgment of the High Court, dated 25-6-1984, whereby the writ petition filed by the appellant was dismissed. The brief facts resulting in the present appeal are that the appellant and the respondent contested the election to a seat of District Council, Kotli, ward Panjan. The appellant secured 1658 votes whereas the res pondent got 1614 votes. Consequently, the appellant was declared success ful by the Returning Officer within the meaning of the relevant Election Law. The respondent filed an election petition before the Election Tribunal, inter alia, on the ground that votes polled in favour of the appel lant at polling station Narakot did not bear the signatures of the Presiding Officer on their back and as such were invalid and could not be counted in favour of the appellant. The Election Tribunal accepted the petition and excluded the unsigned votes polled in favour of the appellant. Thus, respondent No. 1 was declared as successful and the appellant was nonseated. The appellant challenged the order of the Election Tribunal before the High Court through a writ petition which was dismissed on 25-6-1984. It is against the said order of dismissal that the present appeal has been preferred, We have heard the arguments and gone through the file. It has been argued by the learned counsel for the appellant, Sardar Sayab Khalid, that the learned single Judge in the High Court has erred in holding that the ballot papers were not signed by the Presiding Officer as required under rule 35 (d) of the Azad Jammu and Kashmir Local Council Rules, 1983, (hereinafter shall be called Rules). He has maintained that it has been clearly admitted by Muhammad Naseer, the Presiding Officer, who appeared as witness before the Election Tribunal, that ballot papers were signed by Munir Hussain, who was performing duties as Assistant Presid ing Officer at the relevant polling station. The learned counsel has also placed on record an attested copy of the relevant record which shows that Munir Hussain was appointed as Assistant Presiding Officer for the polling station in question. In fact the appointment of Munir Hussain as Assistant Presiding Officer was not seriously contested by the learned counsel for the respondent. Mr. Sayab Khalid has maintained that according to the definition of 'Presiding Officer' given in the rule 2 (xxii) the ballot papers to Munir Hussain or not the same could be signed by him under rule 35 (d) of the Rules. For the sake of convenience, rule 35 (d) is reproduced as under ; "35 (d) The ballot paper shall on its back be signed by the Presiding Officer or the Assistant Presiding Officer ;" It is evident from the above rule that proviso to sub-rule (3) of rule 11 and rule 35 (d) when read together clearly indicate the intention of the flaw giver that the Assistant Presiding Officer is empowered to sign the ,(ballot papers with the express or implied approval or consent of the (Presiding Officer, especially so when no particular mode of entrustment of (the aforesaid function has been prescribed under the relevant rule. The next question which falls for determination is whether the votes could be excluded from the count because they were signed by the Assistant Presiding Officer on the front and not on the back side as envisaged under rule 35 (d) of the rules. It has been argued by the learned counsel for the appellant that the provisions of the Election Rules laying down the procedure for the election would be deemed to be directory in nature unless a penalty has been provided for the non-observance of any of such rules themselves. The learned counsel has maintained that as under rule 41 (a) only such votes can be excluded which do not bear the signatures of the Presiding Officer, the votes could not be excluded merely on the ground that signatures by the Assistant Presiding Officer were to be but on the front side and not on the back side. In reply the learned counsel for the respondent, Raja Muhammad Aslam Khan, contended that rule 35 (d) and rule 41 (a) are to be read together and it must be assumed that the legislature intended that the votes although signed by the Presiding Officer or by the Assistant Presiding Officer on the front side would be excluded from the count if those were not signed on the back side as envisaged under rule 35 (d). On the other band the learned counsel for the appellant cited a number of authorities in support of his contention that rule 41 (a) cannot be interpreted to mean that a vote should be excluded from the count even if the same is signed on the front side. Some of the said authorities are as under: In "Muhammad Ibrahim v. Election Tribunal" (PLD 1966 Lah. 794), the provisions of Sections 40 and 45 of the Electoral College Act, 1964, were subject of consideration. It was held that Section 40 of the aforesaid Act does not govern the provision of Section 45 of the Act and the duty cast upon the Presiding Officer under Section 40 (2) (c) to stamp ballot paper with official mark and also initial the same is merely directory. However, duty cast under Section 45 to count all the ballot papers except those found invalid is mandatory and as such ballot papers bearing the official mark but not the initial of the Presiding Officer as required under Section 40 (2) (e) cannot be declared invalid under Section 45 (1) of the said Act. In "Razi-ur-Rehman Khawaja v. Akbar All" (PLD 1967 Lah. 699), again the provisions of Electoral Colle?e Act, 1964, /. e., Section 40 and 45 were the subject of consideration and it was held that ballot papers bearing official mark but not containing initials of the Presiding Officer cannot be rejected. It was held that the provision contained in Section 45 (1) of the said Act was clear and the Legislature insisted only on the itself has prescribed a penal consequence for their violation or non-compliance by the election officials. In "Hidayat Ullah v. District Judge Sialkot ' (1984 C. L. C. 1472), it was held that failure to comply with the provisions of Ordinance or Rules will not avoid elections much less instructions would do if the result was not meterially affected. Non-compliance of para. 69 (d) of Manual of instructions issued for the elecfioibto the Local Council in Punjab was held merely an irregularity. In "Mian Zia-ud-Din v. Punj^B Local Government Election Tribunal, Lahore " (PLJ 1984 Lahore 367), it was held that omission to follow instructions is merely an irregularity because no penalty bad been pres cribed for non-compliance with the instructions. It was further opined that voters or candidates could not be punished for no fault of theirs and for the action or omission of another person over whom they had no control. In "Haji Muhammad Siddiq v. Aurangzeb & another" (PLJ 1984 Lah. 420), it was held that failure of Presiding Officer to enter number of voters on the counter-foil was merely an irregularity not affecting the result of the election. 1979, were the subject of consideration. It was held that the absence of the initial of the Presiding Officer on the ballot paper when the stamp mark was presentrwould not invalidate the vote.It is evident from the above stated survey of the case law that there is consensus amongst the judicial authorities on the point that if a breach of Irule, instruction or law prescribing the procedure for holding election is Jrnade and no penalty- has been provided for such a breach in the relevant jrules, instructions or law, as the case may be, such breach must be deemed /to be a directory nature and it would not render the election as invalid. In the instant case the provisions of rules 35 and 41 are to be read side by side so as to determine whether the breach of any of the directions, enume rated under rule 35, is directory or mandatory in nature. However, it does not mean that the provisions of rule 41 are controlled by rule 35, as has been contended by Raja Muhammad Asiam Khan, the learned counsel for the respondent. The argument advanced by the learned counsel for the respondent that it must be assumed that the framer of the Rules intended that if a ballot paper is not signed by the Presiding Officer or the Assistant Presiding Officer on the back side, the same should be held as invalid despite the fact that the signatures of any of the aforesaid functionaries appear on the front side of a ballot paper, is not tenable because had the framer of the rules insisted on the signatures of the said officers only on the back side of the ballot paper, it would have been said so in rule <tl (a); the con dition of signing of the ballot papers only on the back side having not been incorporated in rule 41 (a) cannot bs imported on the analogy of rule 35 (d) as has been contended by the learned counsel for the respondent. jThe words which do not appear in a statutory provision cannot be imporjted therein only on the basis of logic by referring to the different provisions lof the same statute It cannot be assumed that while framing rule tl, the (authority framing the Rules was not conscious of the provision contained in rule 35 (a) to the effect that ordinarily the ballot papers were to be signed by the Presiding Officer or the Assistant Presiding Officer on the back side. Thus, there is no room for the argument that the votes in favour of the appellant should be excluded from the count, even if those were signed by the Assistant Presiding Officer. Only on the ground that the same were signed on the front side and not on the back side. It is correct that according to Rule 35 (d) the ballot papers were to be signed on thel back side, but signatures of any of the relevant functionaries even on theL front side, of the ballot papers would not be visited by a penalty, especially! so when no penalty has been envisaged for such an omission in rule (41)1 (a). In the light of what has been stated above we accept this appeal, set aside the impugned judgment of the High Court and that of the Election Tribunal and hold that the appellant stands legally elected as the member of the District Council Kotli and the notification issued by the relevant authority in that regard stands restored. In view of the difficult nature of the points involved in the case, we make no order as to costs. (TQM) Appeal accepted.
PLJ 1985 SC (AJK) 7 PLJ 1985 SC (AJK) 7 Present : raja muhammad khurshid khan, CJ & shbr zauan chaudhry, I BID WALI-Appellant Versus THE STATERespondent Criminal Appeal No. 6/MR of 1983, (i) Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974) -S. 42-A read with Supreme Court Rules, 1978O. XL11I, R. 4 & Azad Jammu & Kashmir Penal Laws Enforcement Act, 1974S. 5 MurderOffence of Conviction Finality of Compromise Effect ofLesser sentence Plea ofConviction attaining finality after judgment of Supreme CourtAll heirs of deceased, howtence while taking into consideration such compromise and Other circumstances. [Pp. 11 & 12]G (ii) Azad Jammu & Kashmir Penal Laws Enforcement Act, 1974
S. 5Murder-Offence ofLesser sentencePlea ofOnly three out of five heirs of deceased coming forward to forgive appellant- Held : It being imperative for all heirs to forgive culprit to earn (his) acquittal, provision (S. 5) to be hardly attracted in case. [P. 10]4 (Hi) Azad Jammu & Kashmir Penal Laws Enforcement Act, 1974 -S. 5 MurderOffence of Sentence for None out of heirs insisting for Qissas or diyyat money Three out of five heirs of deceased, however, forgiving appellantHeld : All heirs of deceased having not come forward to forgive appellant, S. 5 of Act to be of no avail. [P. IQjS (it) L«w-
Codified law Departure from Held : Codified law to be followed (by courts) and not to be departed from unless same be made to conform with provisions of Holy Quran and Swmah, PLJ 1983 SC (AJK) 77 reiterated (t) Law-
Divine lawCodification »( Requirement of Held : Laws en acted by Parliament or some other competent authority vesting with such powers under Constitution or other machinery to be distinguishable from divine laws which (laws) not to be termed as laws of country unless so enacted or codified. [P. \\E (vi) Supreme Court
Decisions byHeld : All courts though bound by decisions of Supreme Court under Constitution, Supreme Court not to be bound by its own judgmentsHeld further: Earlier orders/judgments not to be reviewed though such view to be (competently) changed, in later case. fP 13]# PLD 1955 FC 185/e/. (yii) Supreme Court
Practice & procedure ofHeld : Supreme Court to be bound by codified law and not to go beyond it. [P. 11]C (viii) Words & Phrases
«'Codify"-Meaning of. [P. ll]£> Mr. M. A. K. Ansari, Advocate for Appellant. Ch. Lai Hussain, Addl. Advocate General for State. Messrs. Rafiq Mahmood, Advocate General, B. A. Sheikh and Muhammad Taj, Advocates as amid curiae. judgment Raja Muhammad Khorshid Khan, C. J.This appeal moved by Eid Wali appellant challenges the judgment of the Azad Jammu and Kashmir Shariat Court dated 28th of March, 1983, whereby his appeal to the effect that as some of the heirs of the deceased have forgiven him, his sentence of death may be commuted to a lesser penalty, was disallowed on the grounds : (i) that the conviction had attained finality after its confirmation by the Supreme Court; (ii) that offence of murder pertains to the period when it was not compoundable ; and (Hi) that the issue is beyond the jurisdiction of the Shariat Court . His case is that the sentence under section 302, Azad Penal Code, though termed as death, is in fact a sentence of 'Qissas' as stipulated under the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, (hereinafter to be referred as the Act pf J974) and when it is compromised. by some of the heirs of the deceased, the death sentence cannot legally sustain even after attaining the fiaality as a result of the decision of the Supreme Court. 2. This appeal has arisen in the following way : Two cold-blooded murders were committed by the appellant, Bid Wall, prior to the enforce ment of the Act of 1974, under which the offence of murder has been, for the first time, made compoundable. He was condemned to death under section 302, Azad Penal Code, by the Sessions Judge, Poonch, vide judg ment dated 28 11-1974. His appeal to the High Court was dismissed vide order dated 30-11-1975. The Supreme Court also, on appeal, confirmed the death sentence with the following observation, vide order dated 4-11-1978 : . "Another point advanced as a mitigating circumstance, is, that the appellant had acted under the extreme frustration and excruciating agony caused by the wife and her parents by denying to him his legitimate right of having access to his legally wedded wife. To us, this fact alone, even if the appellant had suffered the panges of separation from his wife and the denial of sex life by her, cannot be regarded, in the circumstances of this case, as an extenuating circumstance calling for lesser sentence. Law is no respecter of such overblown passions or inflated feelings except when a case falls under exceptions provided in section 300 P. C. surely this is not the case falling under these exceptions. A nor mal person is not expected, even if he be a love lorn husband, to let loose his passions and take the extreme step of committing cold-blooded murder, simply because he has been denied access to his wife. But even if this fact were a matter for consideration, there is absolutely no element of mitigation in the murder of Ghaffar Sheikh much less in that of Mst. Fatima . In view of this fact, this plea of the learned counsel of the appellant, leaves us unimpressed. In the result, we find no mitigating circumstance for not awarding the normal sentence of death in this double murder case and as such dismiss the appeal." The above observations would show that the Supreme Court, for very solid reasons, declined to award him the lesser sentence. 3. After hearing lengthy arguments addressed at the bar by the learn ed counsel for the parties, we have reached the conclusion that this appeal must fail for the following reasons : (a) The deceased in this case are two, namely, Ghaffara Sheikh and his daughter Mst. Fatima. The following persons are entitled to inherit their property : (1) Mst. Zooni widow of Ghaffara Sheikh (deceased) and mother of Mst, Fatima (deceased). (2) Muhammad Siddique, (3) Muhammad Rafique sons of Ghaffara Sheikh and brothers of Mst. Fatima (deceased). (4) Mst. Shah Jahan, (5) Mst. Zareena, daughters of Ghaffara Sbeikb (deceased) and sisters of Mst Fatima (deceased). Heirs of the deceased listed under Nos. 1, 3, and 5 have forgiven the appellant for the murder of Ghaffara Sheikh and Mst Fatima. Their statements have also been recorded. Mst. Shahmali and Mst. Arsha sisters of Gbaffara Sheikh have also forgiven the appellant but they are not the heirs of the deceased. It would thus appear that two of the heirs listed under Nos. 2 and 4, namely Muhammad Siddique and Mst, Shah Jahan, despite repeated opportunities have not come forward to forgive the appel lant for the murder of Gbaffara Sheikh and Mst. Fatima. The question, therefore, naturally arises as to whether when two of the heirs of the deceased have not Come forward to forgive the appellant even under the provisions of the Act of 1974, the appellant is entitled to the con cession of converting the normal sentence of death to a lesser penalty. The relevant provisions of section 5 of the Act of 1974 reads as under ; The examination of the above provision of the Act of 1974 unmistak ably sbowi that a person who stands charged of murder under the Act and stands convicted to a sentence of 'Qissas', will be let of only if all the heirs of the deceased forgive him or if they after receipt of some goods by mutual agreement strike a compromise. This provision is hardly attrac ted in the present case because under this provision it is imperative for all the heirs to forgive the culprit to earn acquittal. But here only three out of five heirs of Ghaffara Sheikh and Mst. Fatima (deceased) have come forward to forgive the appellant and the two, namely, Siddique son of Ghaffara Sheikh and Shah Jahan daughter of Ghaffara Sheikh abstained to forgive him. (b) This brings us to consider the provisions contained under the explanation to section 5 of the Act of 1974. The explanation referred to above only covers the cases where among heirs of the deceased some insist for 'Qissas' while others demand 'diyyat'. If such a situation is available then only sentence of 'Qissas' can legitimately be commuted to the sen tence of 'diyyat'. The present case is distinguishable as none out of the heirs either insists for f Qissas' or 'diyyat' money. Therefore, there is no escape but to say that section S of the Act of 1974 is of no avail to the appellant for the reason that all the heirs of the deceased have not come forward to forgive the appellant. This solitary ground is sufficient to dis allow this appeal. (c) The appellant was convicted under section 302, Azad Penal Code, prior to the enforcement of the Act of 1974 Offence . under section 302, Azad Penal Code, was not compoundable and the Act of 1974, has not made to operate retrospectively. We are not oblivious to the fact {finality after the judgment of the Supreme Court felt advised to commute jthe sentence of death in murder cases under section 302, Azad Penal Code, no a lesser sentence while taking into consideration the compromise. But lit was only done when all the heirs had compromised the matter and circumstances also made such a. demand and not otherwise. Reference may be made to two cases namely 'Mabmood Ellahi v. The State' (Criminal Appeal No. 6 of 1981) decided on- .13-4-1983 and 'Fazal Ellahi v. Statt' (Criminal Appeal No. 19 M. R. of ti978). In the first case it has been observed : "In view of the submissions made by the learned counsel for the parties the question needing determination is as to whether the Constitu tional provisions read with Supreme Court Rules confer vast powers on this Court to pass any order in any case or matter in order to do complete and substantial justice. We now proceed to examine the relevant constitutional provision on the subject. Section 42-A of the Azad Jamtnu and Kashmir Interim Con stitution (3rd amendment) Act 1976, reads as : 'The Supreme Court shall have powers to issue such direction, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. ............... ' Section 4 of Order XLIII of the Supreme Court Rules 1978 reads : 'The Court shall have powers to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require,.... ' After careful consideration of the constitutional provision read with Supreme Court Rules listed above we find ourselves in agreement with the learned counsel for the appellant that these provisions do indeed confer wide powers on this Court. But even then the question which needs consideration is as to whether effect can be given to the pardon granted by the heirs of the deceased under the provisions of Islamic Act, despite the fact that the appellants stood convicted for an offence under the Penal Code. For the resolution of the above listed query we will now, therefore, proceed to examine the merits of the proposition in the light of the sub missions made by the learned counsel. The appellant no doubt was tried for the offences under the Penal Code but all the same we cannot be oblivious of the fact that the Islamic Act was promulgated during the pendency of the trial of the appellant. It was a legislation in the nature of a step towards the fulfilment of a long cherished goal of islamisation of all the laws. For the transformation of our social system into a true Islamic social order, it is imperative that all the laws made are in conformity with the injunctions of Holy Qur'an and Sunnah . In case of murder the heirs of the man killed, under the Islamic Law have the absolute right either to demand 'Qissas' or to grant total pardon to the offender if they so choose. This is a right, absolute in nature and ordained by God. Verse 178 of 2nd Surah of Holy Qur'an reads ; ' Ob ye who believe the law of equality is prescribed to you in case of murder. The free for the free, the slave for the slave, the woman for the woman but if any remission is made by the brother of the «Iain'. Again the relevant provision of Islamic Act on the proposition is section 5 of the Act which reads as : The provisions of Islamic Apt visualising the said concept has necessi tated to bring about necessary amendment in the said Act so as to harmo nise it with divine law. A harmonious construction of the provisions of the Islamic Penal Laws Act to the dictates of Muslims law as enunciated by Muslim jurists is desirable, but this cannot be done in violation of accepted rules of interpretation. We are of the view that despite the sanctity of devine law, it is not possible in this case to commute the death sentence of the applicant either under inherent powers or under any other law for the time being in force." (g) As all the heirs have not forgiven and pardoned the appellant it will not only be beyond our jurisdiction but also be violative of section 5 of the Act of 1974 toreduce the sentence. A reference has also been made to a case entitled 'Sardar All v. State' (Criminal Appeal No. 16 of 1978) which was decided on 4-12-1978, related to the period prior to the enforcement of the Act of 1974. That case is distinguishable in the sense that all the heirs of the deceased Muhammad Yaqub had forgiven Sardar All appellant. (h) We may state here that earlier orders/judgments cannot be reviewed though such a view can be changed in a later case. Rehearing of the order earlier passed is not possible. No doubt all the Courts are bound by the decisions of the Supreme Court under the Constitution but the Supreme Court is not bound by its own judgments. So was held in 'Anwar v. Crown' (P. L. D. 1955 F. C. 185). In view of the above, we see no force in this appeal which stands dismissed. A copy of this order shall be sent to the convict in jail. (TQM) Appeal dismissed.
PLJ 1985 SC (AJK) 13 PLJ 1985 SC (AJK) 13 Present : raja muhammad khurshid khan, CJ MUHAMMAD NAZ1R Petitioner versus Mst. KARAMAT BEGUM and Another Respondents Civil Review Petition No. 2/MR of 1981, decided on 15-12-1984. (i) Supreme court --- Review jurisdiction of Exercise of No error much lest error on face of record disclosed in impugned judgment Petitioner, however, challenging correctness of view already taken by Supreme Court-Held : Supreme Court having no jurisdiction to hear appeal against its own judgment, review petition not to be permitted on ground of incorrectness of view Held further : Review being not competent on ground of conclusion being wrong (unless something obvious be overlooked), no mistake in considered conclusion to be valid ground for exereite of review jurisdiction. [P. 15]^ & B (ii) Supreme Court
Review jurisdiction ofExercise ofHeld : Review by its very nature being not appeal for rehearing merely on ground of one party or other considering itself dissatisfied with decision of Court, same to be granted only for some sufficient cause akin to those mentioned in O. XLVII, R. 1 of Civil Procedure Code (V of 1908J- None of grounds justifying review of order available in caseHeld : Review to be in competent. [P s 15]C (iii) Supreme Court- Review jurisdiction ofScope ofHeld : Scope of review juris diction being limited one, Supreme Court, in certain cases, not review its orders despite its feeling inclined to have different view. [P. 15]D Mr. Muhammad Yunus Surakhvi, Advocate for Petitioner. Ch, Muhammad Riaz Akhlar, Advocate for Respondents. order Through this review petition, the petitioner seeks reconsideration of the judgment passed by this Court on 6th of December, 1981, whereby leave to appeal to the petitioner was refused. 2. The only point agitated and debated at the bar ia support of the petition for leave to appeal was about the waiver. It was claimed by the petitioner that the pre-emptor-non-petitioner had disentitled himself to pre-empt the suit land as he being disinterested declined to purchase the same. 3. Leave to appeal was refused on the ground that the Supreme Court can interfere only when the decision is patently erroneous or ased on no evidence, non-reading of evidence or such that it could not honestly be ar rived at after giving due consideration to the facts and circumstances of the case and as none of the defects, listed above, in my view, were noticed in the impugned order, leave to appeal was refused. The learned Judge of the High Court, it was found, had recorded well reasoned out judgment to disown this claim of the petitioner. It was further held that in order to justify grant of leave, at least some serious questions of law to indicate miscarriage of justice must, prima facie, be made out. The mere fact that opinion may differ (as was canvassed in this case) if a fresh appraisal of the evidence is made out, hardly provides a valid ground for acceptance of the petition for leave to appeal. It was also held that this Court has always declined to assess the weight of the evidence barring the cases, of course where the evidence has either been misread ur not read at all. 4. I have heard the learned counsel for the parties in support of their respective contentions. Mr. Muhammad Yunus Surakhvi, the learned advocate appearing on behalf of the petitioner, mainstains that some of the evidence has not been taken into consideration in its true perspective Elaborating his view point he submitted that the statements of Raja Muhammad, Muhammad Nazir and Mahand contained sufficient material to constitute waiver on the part of non-petitioner, Karamat Begum. 5. I am unable to subscribe to the contention of the learned counsel for the petitioner. The submission early wants me to reapraise the evidence. This contention practically agitato the saw objections which, in my view, were discussed and discarded in the impugned judgment. No error much less an error apparent on the face of the record is disclosed in the impugned judgment as required by rule 1 of Order XLVII of the Code of Civil Procedure. The pleas now taken amounts to challenge the correctness of the view already taken by this Court. To permit a review petition on the ground of incorrectness of the view (which is not even the case here) would amount to granting the Court the jurisdiction to hear t'ht appeal against its own judgment and that surely is not the scope of the review jurisdiction. No mistake in a considered conclusion, whatever«the extent of that mistake may be, can be a valid ground for the exercise of review jurisdiction. Review is not competent on the ground that the conclusion is wrong unless, of course, some thing obvious has been overlooked. 6. As said in the first part of the judgment this Court would not sit in appeal on its own judgments as there must be end to litigation, A review by its very nature is not an appeal for rehearing merely on the ground that one party or the other considers himself to be dissatisfied with the decision of this Court. It can only be granted for some sufficient cause akin to those mentioned in Order XLVII rule 1 of the Code of Civil Procedure. As none of the grounds justifying the review of the order are available in this case, the review is incompetent. Besides, I also entertain the belief that the review is untenable because the ground of waiver raised in this review petition is only aimed towards reappraisal of the evidence which normally "the Supreme Court would not undertake.! The scope of review petition is so limited that in certain cases despite thcL fact that this Court may feel inclined to have a different view, would noil review its orders due to the limited scope of the review petition. | For the view I have taken in the matter this petition fails. (TQM) Petition dismissed.
PLJ 1985 SC (AJK) 15 PLJ 1985 SC (AJK) 15 Present : raja muhammad khurshid khan, CJ & shbr zaman chaudhkv, J STATEAppellant versus MUHAMMAD AFSAR KHAN and 2 OthersRespondents Criminal Appeal No. 12 of 1980, decided on 22-10-1984. (i) Appeal against Acquittal
AcquittalOrder ofSupreme Court Interference with by Held : Mere possibility of Supreme Court coming to different conclu sion on re-appraisal of evidence on record on facts and circum stances of case not to be considered sufficient to justify interference with judgment of acquittal recorded by High CourtInterference, however, to be justified provided grounds forming basis of 'acquittal' be found demonstratively unsupportable on evidence High Court passing well-considered and elaborate judgment and after due appreciation of evidence rinding story of prosecution doubtful Held : Verdict of innocence in favour of respondents returned by High Court to need no interference. [Pp. 17 & 18] C.D&E PLD 1959 SC 258 ; 1968 SCMR 372 &, 1968 SCMR 999 rtl. (ii) Appeal against Acquittal
AcquittalOrder of Interference with Held : Supreme Court not to interfere with verdict of innocence recorded by High Court unless none of grounds upon which High Court acquitted respondent be available. [P. 17]B (HI) Supreme Court -
Appellate jurisdiction ot'-^ Findings of fact Interference with Held : Supreme Court to rarely interfere with finding arrived at by High Court after appreciation o/ evidenceHeld further : Mere fact of there being possibility of Supreme Court taking different view of evidence not to be sufficient »to overrule finding of High Court Defect making finding legally untenableHeld : Supreme Court to be competent to come to its own independent finding upon reexamination of evidence. [P. [7]A Sardar Raflque Mahmood, Advocate General for Appellant. Raja Muhammad Hanif, Advocate for Respondents. judgment Muhammad Khurshid Khan, CJ.This appeal, by leave, pertains to a murder case and is directed against the order passed by a Divison Bench of the High Court on 4th December, 1978, whereby setting aside the judgment of the District Criminal Court Poonch dated 15-11-1976 the respondents, herein (three in number), who were convicted by the District Criminal Court under section 3 of the Islamic Penal Laws Act to undergo various terms of imprisonment, which need not be recapitulated here, were acquitted. The prosecution & ory, in brief, as stated in the judgment of the High Court is ; "that Haroon-ur-Rashid complainant, lodged a report with the Police of Police Station Bagh on 27-10-1973 at 11-15 a.m. with the allegation that the complainant and Tufail Hussain deceased were going to ask the villagers to assist them for carriage and stacking of grass on the next day. When they reached near the house of Muhammad Sharif, accused, at 8-30 p.m. they over-heard con versation of some persons on account of which they went to the house of Muhammad Sharif, accused-appellant, where they found Muhammad Afsar accused, Mohammad Akbar, Faryad Hussain, Irshad Hussain, Mohammad Siddique, Mohammad Yusuf, Mohammad Azam, accused-absconder, Ahmed Hussain, Mohammad Sharif, appellants, Maulvi Latif Shah, Mst Hussain Jan, Mst. Hakim Bi and Mst. Nazim Jan etc. Tufail Hussain deceased, required the cause of presence of the aforesaid persons in the house of Mohammad Sharif, Mohammad Afsar accusedappellant replied that they had assembled for the marriage of Ahmed Hussain, his son with Mst. Hussan Jan, sister of Mohammad Sharif accused-appellant. On learning this, Tufail Hussain engaged with his brother Talib Hussain and as such that should be settled first. On this, Mohammad Afsar was provoked and attacked Tufail Hussain with 'Lathi''. Muhammad Sharif, Muhammad Azam, Ahmed Hussain, Mohammad Akbar, and Mohammad Afsar caught hold of Tufail Hussain a.nd| dragged Sardar Rafique Mahmood during the course of his arguments wanted us to re-appraise the evidence. When confronted with the settled principle of law, discussed above, the learned Advocate General, frankly conceded that the re-appraisal of the evidence is not justified and in fact the judg ment of the High Court, in this case, is based on sound appreciation of evidence and, therefore, he does not want to contest this appeal. We have also examined the relevant record and the impugned judg ment. The learned Judges of the High Court have passed a well consider- D ed and elaborate judgment. After due appreciation of the evidence they found, and in our view very riglitly, that the story of the prosecution is doubtful right from the beginning and the general appraisement of the evi dence of the prosecution is indicative of the fact that the complainant party deliberately and with full knowledge of the function of 'Nikah' ceremony of Ahmad Hussain with Mst. Hussan Jan went to the house of Muhammad Sharif accused where the fight took place. They further opined that the deceased and the complainant party had no cause to have illegal entry into the bouse of Muhammad Sharif and enter into the controversy of 'Nikah' or engagements of Mst. Hussan Jan. On the above and some other substantial circumstances it was found that the accused persons were justified to apprehend the intention of the deceased and complainant and in exercise of their right of defence of person, and property they were well within their bounds to cause injuries to the deceased resulting in his death. The High Court further found that the defence story that as a matter of fact the complainant and the deceased aiongwith 14 other persons ; including fMuhammad Yusuf, Muhammad Siddique and Muhammad Ghulam, P.Ws., went together to the house of Muhammad Sharif to kidnap Mst. Hussan Jan and in execution of this act the deceased suffered injuries is more plausible than the version of the prosecution. This is the reason the High Court opined, Haroon-ur-Rashid, complainant, inspite of having knowledge of death of Tufail Hussain felt advised to keep mum for the whole night »and day and made a delayed report to the Police at 1115 a.m. next morning. Besides, in the opinion of the High Court, the prosecution version is doubtful because the complainant party in the natural event must have informed all the villagers of the incident but they failed to do so casting serious doubt in the prosecution story. The absence of this natural conduct on the part of the complainant side, (it was rightly held by the High Court, makes the prosecution case doubtful. The material to record the finding of acquittal was also available with the High Court from the contradictions in the evidence of S.H.O. and the complainant regarding the manner the F.I.R. was prepared at the place of occurrence after the preliminary in vestigation. It is significant that Muhammad Yusuf and Muhammad Ghulam, P.Ws.. deposed that they were detained at the Police Station for 3/4 days. This fact lends support to the defence version that the investigating officer was of the view in the beginning that the complainant party was the aggressor and they had taken law in their own hands by trespassing in the house of Muhammad Sharif, accused. I The above circumstances would show that the verdict of innocence in Hfavour of the respondents returned by the High Court is well founded and (needs no interference. For the above stated reasons this appeal entails rejection. Thui we order accordingly. The respondents shali be discharged of their bail bonds. (Aq. By.) Appeal rejected.
PLJ 1985 SC (AJK) 19 Present: RAJA MUHAMMAD KHURSHID KHAN, CJ Mst PLJ 1985 SC (AJK) 19 Present: raja muhammad khurshid khan, CJ Mst. BARK AT JANPetitioner versus HABIB KHAN and 6 OthersRespondents Civil Petition for Leave to Appeal No. 11 of 1984, decided on 14-10-1984. (i) Leave to Appeal Grant ofHeld : Leave not to be granted as matter of routine unless some serious question of law be made outAll subordinate courts recording well reasoned finding in holding that rift between parties being not serious one separation on khula not to be ordered -Held : Supreme Court not to be inclined to disturb concurrently concluded finding of fact regarding khula by courts below. [P. 20]A & B PLJ 1984 SC (AJK) 90 distinguished. (ii) Islamic Law & Jurisprudence
MarriageDissolution of Afubaraat and Khula Concept of Suit filed by husband for restitution of conjugal rights decreed while wife's suit claiming dissolution of marriage standing dismissed Held : It being wife and not husband who sought severance for marital life, divorce if ultiomately agreed upon by parties to be only Mubaarat and not Khula. [P. 20]C PLD 1964 SC 456 re/. Kh. Muhammad Saeed, Advocate for Petitioner. Kh. Shahad Ahmed, Advocate for Respondents. order In this petition for leave to appeal, which is meant to discredit the judgment passed by a learned single Judge of the High Court on 10-11-1983, I have heard the learned counsel for the parties in support of their respective contentions. After giving my earnest consideration to the arguments advanced at the bar and minutely going through the available record, I am unable to find out any faulty approach made to the issue of 'Khula' decided against the respondent by all the Courts below ; including the High Court. It has come in evidence that a 'Jirga' in the year 1978 clinched the controversy and it was deciddd that the respondent would pay an amount of Rs. 650/- to the father of the appellant as maintenance allowance for the period the appellant stayed with her father and thereafter the appellant would reside with the respondent. The learned Sub-Judge as well as the learned District Judge found that this amount was paid to the father of the appellant but despite that the appellant chose to stay back from her husband (respondent). It has been found by all the Courts below that the respondent neither mat-treated his wife nor conducted himself in a way which may have caused humiliation to the appellant. Besides, Mst. Barkat Jan, in her statement before the trial Court dated 24th December, 1983, has admitted in cross-examination that she was unhappy with the respondent only because when respondent left the house of her father where the couple was residing he took his chattels to the house of his parents, This is the only grievance which she has against the appellant. Otherwise before the aforesaid incident she had no grievance against the respondent and had all along been happily living with the respondent. It would thus appear that there is do ground to disturb the concurrently concluded finding of the Courts below, on the point of'Khula', Kh. Muhammad Saeed, the learned counsel for the petitioner, criticised the approach made to the issue 'Khula' by all the Courts below, In the estimation of the learned counsel there is sufficient material on the record to believe that the spouses would not be able to live within the iimits ordained by God. In support of the submission he has referred me to "Mahamraad Yusuf v, Mat. Kaisar Jaa" [P.L.J. 1984 S.C. (AJK) 60]. 1 have minutely gone through this judgment. This judgment is alto gether distinguishable and in fact goes against the contention raised by Kh. Muhammad Saeed. The judgment observes : "This is not equivalent to granting a right to wife to come to the Court at any time and obtnin a 'Khula' if she is prepared to restore the benefits she has received. There is an imporiant limitation on her right. It is only if the Judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolution. The wife cannot have a divorce for every passing impulse. The Judge will consider the rift between the parties is a serious one though he may not consider the reasons for the rift." In the instant case all the subordinate Courts have recorded well reasoned out finding and held that the rift between the parties is not a serious one as to order separation on 'Khula'. I, therefore, do not incline to disturb the concurrently concluded finding of fact regarding 'Khula' by the Courts below, It is to be remembered that leave cannot be granted as a matter of rautine ; unless some serious question of law is not made out. Besides it is also significant that where a suit field by the husband for restitution of the conjugal rights has been decreed and the wife's suit claiming dissolution of marriage stands dismissed by the trial Court (as is done in the present <,:;«;} ;t would be w,d that it was the wife who sought severance of the tir.inu! tie and m>t the husband and, therefore, in the circumstances if the divorce ;> uHnriatelv agreed upon by the parties it would be only Mubiiruui' and not 'Khula'. "Mst, Gbutam Sakina v. Umar Bakb»h and another" (P L D, 1964 S.C, 456} supports this view, For the reasons stated above no good ground exists for the acceptance of this petition for leave Co appeal, which stands dismissed. Petition dismissed.
PLJ 1985 SC (AJK) 21 PLJ 1985 SC (AJK) 21 Present: sardar said muhammad khan & shir zaman choudhrtt, JJ MUHAMMAD NAZIR aod 4 Others-Appellants versus ABDUL LATIF and 15 OthersRespondents Civil Appeal No. 8 of 1978 (also 74 of 1979), decided on 2-2-1985. (i) Civil Procedure Code (V of 1908)
S. 9Civi! CourtJurisdiction ofOuster clause Effect of Case brought within ambit of absence of jurisdiction, lack of juris diction, flagrant disregard to statutory provisions or authority or tribunal passing order shown to have been actuated by mala fides Held : Jurisdiction of civil court not to be barred despite specific ouster by statutory provision. [P. 25]A (ii) Ciril Procedure Code (V of 1908) -S. 115High CourtRevisions! jurisdiction of Exercise of Discretionary ordersInterference withHeld : High Court while exercising jurisdiction not to enter upon investigation of questions of fact for justifying interference with discretionary orders of sub ordinate courts, [P, 25]C (iii) Ciyii Procedure Code (V of 1908) O. XXXIX, Rr. 1 & 2Temporary injunction Grant of Civil court held competent to take cognizance of matterHeld : Temporary injunction not necessarily to be issued in all (such) casesCourt to take into consideration guiding principles namely (s) prima facie case, (ii) balance of convenience and (iii) irreparable ioss iikely to be caused to party seeking temporary injunction. [P, 25] B Raja Muhammad Hanif Bhatti, Advocate for Appellants. Kh. Muhammad Based, Advocate for Respondents Nos. 1 to 3 and 4-A to 4-E. Kh. Shahad Ahmed, Advocate for Respondents Nos, 18 to 22. Sardar Rafique Mahmood, Advocate Genera! for Respondents Nos, 23 and 24, Nemo for Respondents Nos, 5 to 17. judgment Sardar Said Muhammad Khan, J.-The two above titled appeals have been directed against the judgment of the High Court dated 8-1-1978, whereby accepting the revision petition the order of the District Judge was set aside and temporary injunction issued by the trial Court was restored. We propose to dispose of both these appeals by a single order. 2, This case has a chequered history behind it. In pre-partition days an incorporated Company was carrying on its business and its share holders consisted of Hindus and Muslims. When the War of liberation started is 1947, the Hindu share-holders of the aforesaid Company migrated to occupied part of the State but the Muslim share-holders continued their business by plying their Vehicles in Azad Kashmir territory in the name of the aforesaid Company. In the year 1968, the Provincial Transport Authority out of three B' part route permits of the Company renewed only one <W part routr permit in favour of Taj Muhammad, appellant, whereas two 'W part route permits were renewed in favour of respondents Nos. 1 to 4 (in Appeal No, 74 of 1979). Muhammad Taj, appellant, as a Managing Director of the Company filed an appeal before the Appellate Authority, under Motor Vehicle Act, challenging the renewal order of two B' Pan permits in favour of respondents Nos. 1 to 4. The Financial Commissioner acting si Appellate Authority remanded the case to the Provincial Trans port Authority with certain directions to make investigation with regard to certain controversial points and decide the matter afresh. The Provincial Transport Authority decided the case on 24-8-197! whereby it divided the route permits amongst Taj Muhammad appellant and respondents Abdul Latif and three others and excluded respondents Nos. 5 to 15 from taking benefit of any permit issued ia foe name of the Company, Taj Muhammad appellant and respondents Nos. 5 o 15 (respondents in appeal filed by Taj Muhammad) being aggrieved by the Order of the Provincial Transport Authority dated 24-8-1971 filed separate appeals before the Appellate Authority ; the appellant Taj Muhammad also filed an application for suspension of the Order passed by the Appellate Authority till the decision of the appeal. Consequently, a stay order was issued by the Appellate Authority in terms that status quo should be maintained. The respondents Nos. I to 8 filed a writ petition before the High Court challenging the validity of the stay order but the same was dismissed by the High Ceurt on 11-3-1972. Subsequently, the appeal was decided by the Appellate Autho rity vide its Order dated 15-2-1973, whereby both the aforesaid appeals were accepted and orders of the Transport Authority dated 3-6-1968 and 15-8-1971 were set aside. The Appellate Authority directed that the route permits should be issued in the name of the Company and management of the Company should be carried on by Taj Muhammad appellant. Respon dents Nos. 1 to 4, who claimed to have purchased the shares of Company from some of the original share-holders, were advised by the Appellate Authority to seek the redress of their grievance from Civil Court so as to establish that they were Sega! transferees of the shares of the Company ; and as such are the legal share-holders to the extent of the value alleged by them. Respondents Nos 1 to 4 instead of seeking remedy by way of Civil Suit, preferred a writ petition in the High Court challenging the order of the Appellate Authority as being without lawful authority inter alia, on the ground that the Appellate Authority had no jurisdiction to entertain and decide the appeal. The Division Beach of the High Court dismissed the aforesaid writ petition, entitled 'Abdul Lttif sod others v. Financial Commissioner' (writ No. 9 of 1973), on 9-7-1973. observing that, prima facie, there was force in the arguments advanced by the counsel for the respondents that the Appellate Authority had the jurisdiction to decide the appeal. However, the learned Judges made observations to the effect that the points involved in the case require investigation into the facts and are complicated, as such these can be only decided by a Civil Court . Consequently, Abdul Latif and others Sled a civil suit in the Court of Sub-Judge Muzaffarabad seeking a decla ration to the effect that they were lawful share-holders of S. R. T.; that their Vehicles Nos, AJ'K. 1767 and AJK 1895 were being lawfully plied on the route permits issued in favour of S. R. T.; and that the defendants may be restrained from interfering with their business of transport, The plain tiff Abdul Latif and others also filed an application seeking a temporary injunction under Order 39 rules ! and 2 praying that ad interim injunction restraining the defendants from plying their Vehicles on the said route permits might be issued. The learned Sub-Judge first issued a temporary injunction in the terms in which the same was sought but subsequently he amended his previous order and issued a temporary injunction to the effect that the plaintiffs shall continue plying their buses No, AJK 1767 and AJK 1895 as they had been previously doing and Taj Muhammad defen dant would also ply his Vehicle. The order of the Sub-Judge, dated 13-11-1983, was challenged by way of appeal before the District judge who accepted the appeal and set aside the order passed by the Sub-judge, Consequently, a revision petition was preferred before the High Court and the learned single judge of the High Court accepting the same set aside the order of the District Judge and restored the order of the trial Court. H is against this order, passed in the revisiona! jurisdictioo by the learned single Judge in the High Court, that the present appeal, by leave, has been preferred. 3. We have heard arguments and gone through the file. It has been argued by Raja Muhammad Hani!" Bhatti, the learned counsel for Taj Muhammad and others, that the learned single Judge in the High Court has transgressed the limitations prescribed under section 115 of Civil Procedure Code by entering into the investigation of facts ; by calling upon the parties to file affidavits in support of their respective contentions. The learned counsel has argued that revisional powers under section 115 CPC are primarily intended for correcting errors made by the subordinate Courts and the High Court is not empowered to interfere with a discre tionary order if the same is not found fanciful or arbitrary. He has further urged that the revisional powers are not to be exercised by the High Court until and unless the case is covered by section 115 CPC and the order challenged is either without jurisdiction or has been passed in a flagrant disregard to law. The learned counsel has further argued that the mere fact that the High Court may draw different conclusions from the facts, in light of the record, is not sufficient to empower it to disturb the discretion exercised by the Courts below. The learned counsel has cited following authorities in support of his contention, 4. In 'Shahzada Muhammad Uraar Beg v. Sultan Mahmood Ibaa' (P.L.D. 1970 S,C. 139), it was held that revisional power under section !!5 C.P.C. are primarily intended for correcting errors made by the subordinate Courts in exercise of the jurisdiction. It was further opined that order issuing temporary injunction by subordinate Courts being discretionary cannot be interfered with, unless the same is found fanciful and arbitrary. It was futher observed that while issuing an order of injunction against a public department the Court should seriously consider that the order doe not disturb the working of such department. 5. In'S Zafar Ahmed v. Abdul Kfoaliq' (P.L.D. 1964 Kar. 149), it was held that revisional powers of the High Court under section 115 CPC are limited and same should not be exercised merely because the order was incorrect. It was further observed that the Court while exercising revisional jurisdiction should interfere only if the order is found without jurisdiction. The discretionary orders, it was held, should not be interfered, with becas« the revisiooal jurisdiction is to be exercised only where the impugned order is violative of any of the conditions envisaged under section 115 CPC. 6. In 'Kanwai Naia and others v. Faith Kbit® and others' (P.L.J. 1983 SC 1) it was held that the revisional powers of the High Court are primarily intended for correcting errors made by the subordinate Courts in exercise of their jurisdiction and an erroneous decision oa question of fact is not open to revision except on the ground that the decision is based on no evidence, inadmissible evidence or is so perverse as to cause grave injustice. 7. In 'Mahamaiad Hossain Mwair aad others y. Sifcsadar sad others' (P.L.J. 1974 SC 60), a comparative study of Article 98 and section 115 CPC was made and it was held that writ jurisdiction of the High Court being creation of constitution stands oa higher padestal as compared with revisional power under section 115 CPC. It was observed that order passed by the competent authority cannot be interfered with, even in exercise of writ jurisdiction, if the same is not found to be without lawful authority. The learned Judges also made a distinction between the appellate jurisdiction and the revisional jurisdiction of the High Court and opined that the latter should not be equated with the former and has to be exercised only if a case falls within the ambit of section 115 CPC. 8. It has been argued by the learned counsel for the appellants that after the order of the Appellate Authority, the respondents Abdul Latif and others had to stop plying their buses on the route permits issued in the name of Company. The order of the Appellate Authority was passed on 15-2-1973, whereas the Civil suit was instituted on 22-10-1973, after a delay of 8 months. Thus, he maintained that the plaintiffs-respondents were guilty of laches and their indolence was sufficient to disentitle them from any interim relief, especially so when after the order of the Appellate Authority they had stopped plying their vehicles and were not vigilant to seek relief from the Civil Court. The learned counsel has relied on 'Arts Council of Pakistan v. Riazuddia Pirzada' (P.L.D. 1969 Kar. 349), wherein the meanings of the word '$tutu$ quo were considered and it was opined that temporary injunction being equitable remedy should be refused when a party is guilty of laches. The learned counsel for the appellant has also urged that under section 66 of the Motor Vehicles Act, the jurisdiction of the Civil Court is barred in the matter and as such the impugned order of the trial Court and that of the High Court issuing temporary injunction is violative of the said provisioa. In reply, it has been argued by the learned counsel for the respondents that the fact that the company was divided into two parts, A and B, in the year 1957, and the plaintiffs-respondents were treated by the appellants as legal share holders, as transferee from the original share-holders, establishes a printa facie case in favour of plaintiffs-respondents justifying the issuance of temporary injunction in their favour. The learned counsel for the respon dents has also argued that the jurisdiction of the Civil Court is not barred when the order of an authority or tribunal is challeged on the basts of lack of jurisdiction or on the basis of mala fides. He has relied on cases reported as 'Ghulam Htmain v. Nasfmillah and others' [P.L.D. 1970 AJK 44], 'Sh. I nay at Uliafa and others v. M. A. Khan and others' (P.L.D. 1964 SC 126) 'Abdul Rauf and other v, Abdul HaojUJ Khan and others' (P.L.D. 1965SC P 67!( and Muhammad Jamil Asgiiar i. The Improvement Trust. Rawalpindi' (P L D. 1965 SC 698), in support of his contention that despite trie bar of jurisdiction under section 66.of Motor Vehicles Act, the C:vii Court had the jurisdiction in the matter because in the instant case it has been specifically averred in the plaint that Financial Commis sioner was not competent to hear and dispose of the appeal as the appellate authority, for the reason that the order challenged before him was not an appealable order. 9. We have given our earnest consideration to the arguments advanced at the bar. There is no doubt that the jurisdiction of Civil Court is not, barred despite specific ouster by statutory provision if the case is brought! within the ambit of absence of jurisdiction ; lack of jurisdiction ; a flagrant disregard to statutory provisions ; or it is shown that the authority or the tribunal passing the'order was actuated by mala fiides. However, in the instant case, the main ground on which the order of the appellate authority is assailed is that the orders passed by Provincial Transport Authority were not appealable. This objection was also raised by the plaintiffs-respondent in the writ petition entitled '4bdui Latif and others v, Financial Commissioner' (writ petition No. 9 of 1973) and the learned Judges after perusing the relevant provisions of law opined that there was mu;b force in the argument advanced by the learned counsel for the respondents, i.e , Taj vluharnmad and others that the order was appealable to the appellate authority. It is not possible at this stage to give any final verdict with regard to the fact as to whether the orders passed by the Provincial Transport Authority were appealable or not because thai would amount to deciding the suit. However, taking into consideration the relevant provision of law and observations made by the Division Beach while disposing of the writ petition, it cannot be said that, prima facie, the order of the Appellate Authority was without jurisdiction because the order challenged before the said authority was not an appeal able order, especially so when the objection was not raised before the said Authority, It may be observed here that if on the averments made in the plaint, a Civil Court is held competent to take cognizance of the matter, it does not imply that a temporary injunction should be issued in all cases; whether a temporary injunction should be issued or not, the Court has to take into consideration the guiding principles, namely, (i) a prima facie case (;/) balance of convenience and (Hi) the irreparable loss which is likely to cause to the party seeking the temporary injunction. We have considered the arguments advanced at the bar in light of the aforesaid principles and we are of the view that the learned single Judge in the High Court has failed to appreciate the fact that the High Court while! exercising revisional jurisdiction should not enter upon the investigation of questions of fact for justifying the interference with the discretionary orders of subordinate courts. At this stage, it is not possible to say as to whether in fact the company was bifurcated in two groups, as alleged by the plaintiffs, and whether such bifurcation was legal in view of the relevant provisions of law on the subject. It is also not possible to give any verdict at this stage as to whether the plaintiffs are the liwful share holders. They had yet to establish these facts in the trial Court by evidence. However, prima facie, in' view of the observations made in the order of the appellate authority to the effect that plaintiffs-respondents illegally obtained the permits of their vehicles with the connivance of a clerk of Provincial Transport Authority, and i v r other circumstances, it cannot be said that plaintiffs had a good case for issuance of a temporary injunction. In the light of what has been stated above we accept the appeals, set saide the order of the learned single Judge in the High Court and restore the order passed by the District Judge, in view of circumstances of the case, we make no order as to costs. (SHR) Appeals accepted.
PLJ 1985 SC (AJK) 26 PLJ 1985 SC (AJK) 26 Present : raja muhammad khurshid k.ha.n, CJ & sher zaman chaudhry, J MUHAMMAD LATIF and 5 OthersAppellants versus MUHAMMAD ARIFRespondent Criminal Appeal No, I I/MR of 1984, decided on 19-2-1985. (i) Criminal Procfdare Code (V of 18-8) S. 497Bail-Application forDisposal of on meritsHeld : It being neither possible nor proper for court to give conclusive finding on merits of case while disposing of application for bail at prelimi nary stage of investigation or enquiry of case of murder, superior courts to very rarely enter into merits of case for purpose of determining whether or not person whose trial yet to be held by subordi nate court should be enlarged on bail. [P. 30[B (ii) Criminal Procedure Code (V of iS98)
S. 497BailRefusal ofProsecution satisfying court regarding there being reasonable grounds for believing accused guilty of serious otlence punishable wim aeath or transportation for lifeHeld: Court having no discretion, bail to be refused. [P. 31JF (iii) Criminal Procedure Code (V of 1898)-
S. 497Offences punishable with death or transportationGrant of bail inReasonable grounds existing for believing accused to have committed offence punishable with death or transportation Held : Bail not to be allowed to such accused personHeld further : Reasonable grounds not to be confused with mere allegations or suspicions, nor with tested or proved evidence which law requires for person's conviction for offenceCourts not to be probe into merits of case in order to ascertain whether or not reasonable grounds exist Material placed before them, however, to be looked into by-Courts to sec whether some tangible evidence leading to inference of guilt be available against accused. [Pp. 29 & 30],4 fiv) Criminal Procedure Code (V of 1698 __S. 49" (2) Bail Grant of Further inquiry Ground ot Grounds existing for further investigation and inquiry into guilt oi accused personHeld : Bail not to be withheld in case-Ground of evidence being too weak and case likely to fail ultimately urged Held : Court to ordinarily avoid detailed examination touching merits of case. [P. 30JC (v) Criminal Procedure Code (V of 1898)
S. 49 7 I 2) BailGrant ofFurther inquiryGround ofHeld : Court not to examine merits of prosecution case or plea of defence or to make appraisal of material on record but merely to look into materials placed before it by investigating agencyHeld further : It being not possible to determine point one way or other without full appraisal of evidence (yet to be led in case), Court not to conduct preliminao trial at bail stage. [P. 3Q]D & E (Ti) Bail
Apr'xutiori forDisposal of Superior courtsDuty of Held : Appreciation of evidence and drawing of conclusion therefrom being exclude function of trial court, superior courts not to anticipate same v. hilc dealing with bail matters. [P. 31]G PLD 1967 SC 340 re/, (Tii) Bail
Order ofRecall ofShanat Court, while disposing of bail matter, prejudging question of identification of accused in moonlit night Delay in disposal of case also occurring due to conduct of accused or his counsel and not mainly due to inaptitude of prosecutionHeld : Discretion in allowing bail having not been exercised in legal fashion, interference with such order to be made by Supreme Court, "P. 33;tf Ch. Muhammad Sharif Tariq, Advocate for Appellants. .Mr, Basharai Ahmed Sheikh, Advocate for Respondent. judgment Raja Muhammad Khurshid Khan, C.J.Muhammad Arif. respondent herein, is roped in a murder case. He, alongwith some others, stands ' accused to do away with the life of one Muhammrd Nazir. resident of village Malkey, Tehsil Bhimber, District Mirpur with a gun fire. He is also accused of inflicting injuries on the person of Ghazanfar Ali. P. W.. who also hails from the same village. 2. Muhammad Arif unsuccessfully moved for bail before the District Criminal Court, Mirpur. His application was disallowed on 27th of August, 1984. On appeal to the Azad Jammu and Kashmir Shariat Court . the learned Court, vide order dated 30th of September, 1984, however felt advised to allow bail to him. This appeal is meant to discredit the said judgment of the Shariat Court . 3. The prosecution case, in brief, is that during the night falling between 23rd and 24th of October, 1982, at about 9 p.m., Muhammad Latif, complainant, and Muhammad Nazir, his brother, were guarding 'Maash' crop on the thrashing floor. Muhammad Nazir was taking rest on a 'charpai' while Muhammad Latif, his brother, was laying on the floor. The accused party nine in number, reached there and Muhammad Arif. one of them, gunned "down Muhammad Nazir to death. Muhammad Siddique. another accused, it is the prosecution case, while looking at the dead bod-- of the deceased, said that a wrong person has been killed, One Muhammad Razaq attracted by the fire reached the scene of occurrence and saw the accused taking to their heels. Ghazanfar Ali and Muhammad Tariq sons of complainant present in the vicinity, enquired from the accused as to what they have done on which one of the accused persons fired at them which caused injuries on the persons of Ghazanfar Ali. 4. On, completion of the investigation. Muhammad Arif was sent to ihc District Criminal Court, Mirpur, to face trial under sections 302/307.. A. P. C., read with section 5 of the Islamic Penal Laws Enforcement Act, 1974. About other co-accused, namely, Muhammad Park], Muhammad Siddique Khan, Muhammad, Allah Rakha, Gulzar, Muhammad Siddique and Muhammad Akram, in the opinion of the Investigating Officer, there was insufficient evidence to connect them with any offence. So they were entered in column No, 2 of the challan meant for the purpose and they were later on let off on bail by the District Criminal Court on 22nd of December, 1982. 5. It appears that Muhammad Latif complainant, not being satisfied with the investigation, lodged a private complaint against eleven persons including Muhammad Arif respondent under sections 302/307, 148/149 A. P. C. and section 5 of the Islamic Penal Laws Enforcement Act, 1974, on 27-6-1983. After recording the statements of the witnesses examined in support of the accusation, the District Criminal Court, on 22-3-1984, issued process against Muhammad Arif and Muhammad Siddique son of Munshi Khan under sections 14 and 15 of the Islamic Penal Laws Enforce ment Act, 1974. The order is however, silent as to why the accused were not summoned under section 302, A. P. C., read with section 5 of the Islamic Penal Laws Enforcement Act, 1974. Thereafter the learned Shariat Court was moved in appeal to allow bail to Muhammad Arif which, as said earlier, was accepted vide order dated 30-9-1984. Hence this appeal to discredit the said judgment of the Shariat Court . 6. The judgment of the Shariat Court shows that the Shariat Court felt persuaded to allow bail to the respondent, inter alia, on the following grounds : (/) that after entertainment of the complaint, proceedings in the challan were kept in abeyance and since after the preliminary inquiry in the private complaint, the trial Court issued process against the. accused only under sections 14 and 15 ol the Islamic Penal Laws Enforcement Act, 1974, it would be said that there was insufficient material to connect the respondent with the offence of murder and so bail is the legal demand : (ii) that there has occurred inordinate delay in the disposal of the case which fact earns bail for Muhammad Arif, respondent : (Hi) that the incident had taken place at 9 O'clock of the night and there is very little evidence to show with certainty that Muhammad Arif, respondent, was identified. The learned Court is of the view that it still requires to be seen as to whether moonlit light was sufficient for the identification of the accused. The very fact that Muhammad Siddique, another accused, said that wrong person has been killed, makes the identification of Muhammad Arif doubtful and so it is a case of further inquiry and necessitates bail to Muhammad Arif. 7. We have heard the learned counsel for the parties, Ch. Mubaininad Sharif Tariq. the learned counsel for the appellants, maintained ~ (/) that bail was wrongly allowed to Muhammad Arif because if the private complaint is the ditto copy of the challan (as the case tiecc ^\ Uvc'A fhe proceedings in both the cases simultaneously are permissible (as is done in this case) and the decision will be made by a single judgment. In his estimation, in these circumstances bail cannot be allowed in challan case. On the point he has referred us to Haji Noor Muhammad v. Haji Mubarak and others' (1982 P. Cr. L. J. 1054) in which it has been observed ; 'In the present case,, 1 find, that private complaint is practically ditto copy of F.I. R, and P.Ws. in both the cases are same, so also accused persons. In view of this joint tria! of private complaint alongwith Police case has not resulted in miscarriage of justice. In my opinion provisions of section 239. Cr. P. C. have not been violated by joint trial of private complainant and Police case in question.' : (11) that the trial in the challan case has commenced because in law when the statements under section 242, Code of Criminal Procedure, are recorded, it would be said that the trial had commenced and the learned Judge in the Shariat Court fell in error to hold that no trial has started in the challan case. In fact, he submitted, no trial has so far been started in the private complaint and the learned Judge of the Shariat Conrt fell in error to say that the trial had not commenced in the challan case : (in) that Muhammad Arif, respondent, can only be let off on bail il circumstances so warrant in the private complaint but not in the challan case. 8. As against this, Mr. Basharat Ahmed Sheikh, the learned counsel for the respondent, maintained : (i) that the proceedings in the private complaint destroy the validity of the challan and as in the private complaint the respondent has been sum moned only for the offence under sections 14 and 15 of the Islamic Penal Laws Enforcement Act, 1974, the approach to the issue by the Shariat Court is absolutely correct and needs no interference : (n) that there had occurred inordinate delay in the disposal of the case which fact also was rightly taken into consideration by the Shariat Court to allow bail to the respondent ; and (iii) that identification in the moonlit night, in the circumstances of the case, is doubtful and till it is established with certainty that the identi fication could be made during the moonlit night, the case is of further inquiry and the respondent, as of right, should remain on bail. 9. Here we may state that for offences punishable with death orl transportation, discretion to grant bail is subject to the limitation that bail! is not to be allowed to an accused person, if it is shown that there arcr reasonable grounds to believe that he has committed such an offence, Inj order to ascerain whether reasonable grounds exist or do not exist, the Courts do not have to probe into merits of the case, They have orly to look at the material placed before them by the prosecution, to see whether some tangible evidence is available against the accused, which, if left unrebutted, may lead to the inference of guilty. Reasonable grounds, of course, are not to be confused with mere allegations or suspicions, nor with tested and proved evidence, which the law requires for a person's conviction for an offence. The word "appear" in section 497, Code of Criminal Procedure, seems to have been purposely used inasmuch as at a preliminary stage of investigation or inquiry of a case of murder, it is .leither possible, nor proper for a Court to give a conclusive finding on the merits of the case while disposing of an application for bail. In such cases the Shariat Court/High Court will very rarely enter into the merits of a case for the purposes of determining whether or not a person whose trial has to be held by a Court subordinate to the Shariat Court/High Court should be niarged on bail. 10. In a case where the ground urged is that the evidence is too weak and the case may ultimately fail (as the case is before us), the Court will ordinarily avoid detailed examination touching the merits of the case. Of course, where reasonable grounds are not disclosed but grounds do exist for C|a further investigation and inquiry into the gdilt of an accused person, the case will fall under section 497 (2), Code of Criminal Procedure in which case bail should not be withheld. In such cases the Court has not to examine the merits of the prosecution case or the plea of the defence or to nake an appraisal of the rrutsrial on the record but, merely to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilty. The Court cannot conduct a preliminary rial at the bail stage, because it is not possible to determme the point one way of the other without a full appraisal of the evidence that has been led or may be led, and the Courts should not be invite^ to do that, as it would lead o pre judging the material issues in the case, while deciding the bail application. Such an attempt before the higher Courts, in particular, is wholly undesirable, as any expression of opinion by them on the merits of an> point of substance in the case is bound to prejudice its ultimate decision. 11. It would thus follow that where the crucial point on the determi nation of which materially depends the existence or otherwise of reasonable grounds to believe whether the petitioners are guilty of an offence punish able with death or transportation (as the case is before us) is whether moonlit night was sufficient to identify a person, the question essentially relates to the merits of the case and it is not desirable to give any finding on it one way or the other while dealing with a bail matter. It would, in fact, amount to pre-judging an issue which is always desirable to be left for the view of the trial Court. 12. It is significant that section 497, Code of Criminal Procedure, .speaks only of reasonable grounds and not of evidence. If is necessary for the purpose of granting bail to a person charged with offences punishable with death or imprisonment for life that the evidence brought on the record should be looked into and a prima facie view formed as to whether there appear reasonable grounds for believing that he is guilty of murder. For this it has to consider as to whether upon the material on the record if no further evidence is called or no rebutting evidence is adduced, the accused can be found guilty or not. If it can be then there will be a case where reasonable grounds exist for forming the belief required under section 497 of the Code of Criminal Procedure and the Court would be justified tnj refusing bail. Where the prosecution can satisfy the Court thai there are! reasonable grounds for believing that the accused is guilty of serious! offence, which is punishable with death or transportation for life, the Court! has no discretion, if must refuse baii. 15, The superior Courts, while deciding the applications tor bail, should remember that appreciation of evidence arid drawing of conclusion therefrom is exclusive function of the trial Court and the superior Court,- should not anticipate it while dealing with bail matters. So was held in, Cbiragb Din and others v. The State' fP.L.D, 1967 S, C, 3-40). ft was 1 observed in that case : "The appreciation of evidence and the drawing of conclusions therefrom in relation all the circumstances is the function exclu sive fy of fhc trial Court. It cannot be anticipated by & Superior Court dealing with an ancillary matter, e.g.. the grant of baii. pending trial," The above analysis regarding the bail matters is the critaria of on which generally Courts are guided-in bail matters, 14, Let us now, with some details, see as to whether discretion m the instant case has been exercised in a legal way by ihe learned Shariat Court :n allowing bail to the respondent. In the first instance it appears that all the relevant facts have not been brought to the notice of the learned Chief Justice of the Shariat Court and this fact had occasioned miscarriage of justice. In the first place the contention of the learned counsel, which has influenced the Court to make up its mind for bail, that even the statements of the accused under section 242, Code of Criminal Procedure, have not been recorded in the chalian case, is incorrect. We rind that statement of Muhammad Anf. accused-respondent, in the chalian case under section 242, Code of Criminal Procedure, has been recorded by the District Criminal Court on 21-2-1983. Thereafter from 21-2-1983 up to 27-6-1983 on different dates the prosecution evidence was being summoned. During this period on 19-4-1983 two prosecution witnesses, namely Muhammad Latif and Muhammad Razaq, were present but their statements could not be recorded due to the absence of the learned coun el lor Muhammad Arif, accused (respondent) and the case was adjourned to 27th of June, 1983, for record ing prosecution evidence. On this date again Muhammad Latif and Muhammad Razaq. prosecution witnesses, were present but the learned counsel for complainant requested that the evidence in the chalian may not be recorded as the complainant has moved a private complaint. On this date it was ordered that it would not look proper to record the statements of prosecution witnesses till some decision is made in the complaint. Again on 13-12-1983 it was ordered that this file shall be taken up after proper orders in the private complaint. On 22nd of April, 1984, it was ordered in the chalian case that Mihammad Siddique accused (who was summoned in the private complaint) may be summoned through a non-bailable warrant. The Interim orders show that Muhammad Siddique was not traceable and the Constable who executed the warrants was summoned for recording his statement to enable the Court to proceed against Muhammad Siddique under section 512, Code of Criminal Procedure Similarly in the private complaint, as said earlier, process was issued aga <--^ Muhammad Arif and Muhammad Siddique and the case was fixed for 2nd of May, 1984, On this date Muhammad Arif was present. Thereafter it was heeded to secure the attendance of Muhammad Siddique co-accused but as he was not found in Azad Kashmir the Constable who made the report of his absence from Azad Kashmir was being summoned for recording his statement to enable the Court to proceed against Muhammad Siddique in his absence. 15. It would thus appear that the learned District Criminal Court fell advised to proceed with the trial of the accused in both the cases, challan as well as private complaint, simultaneously, and it cannot be, therefore, said that the proceedings in the challan case were kept in abeyance. The proceedings, no doubt, were suspended till the accused were summoned in the private complaint. The fact of the matter is that the proceedings in the challan case had already started and were kept in abeyance only till the process was issued in the pnvate complaint. Muhammad Siddique. accused, was being summoned in the private complaint %s well as in the challan case. 16. Even if we believe that the order of the release on bail in the private complaint was correct we wonder how could he be released on bail under section 302, A. P. C., read with sections 5 and 6 of the Islamic Penal Laws Enforcement Act, 1974, in the challan case. But while looking into the 'Machalk and 'Zamanatnama' we find that they are meant to cover the case under section 302, A. P. C., read with sections 5 and 6 of the Islamic Penal Laws Enforcement Act, 1974. On the point the argument is not difficult to be advanced that the Shanat Court entertained the errone ous belief that challan was not legally alive in presence of private complaint though in fact proceedings were very much ahead in the challan case too, and the Constable was being summoned to have recourse to section 512. Code of Criminal Procedure, with regard to Muhammad Siddique. 17. We have also looked into the complaint and the statement of the witnesses examined in support of the accusation in the private complaint. in the statements, part for murdering the deceased 'is attributed to Muhammad Arif but he has been only summoned under sections 14.15 of the Islamic Penal Laws Enforcement Act. 1974. What effect it would create is a question on which we refrain to express ourselves at this stage and leave it to be decided by the District Criminal Court. May be that it was an omission curable or capable of being rectified under law. It is also interesting that application for bail before the District Criminal Court on behalf of the respondent was moved to allow him bail under section. 302,307. A.P.C., read with section 5 of the Islamic Penal Laws Enforcement Act. The application was disposed of as such by the Distric 1 Criminal Court. Like-wise in appeal before the Shariat Court the bail was soight for the offence under sections 302/307, A. P. C., read with section 5 of "the Islamic Penal Laws Enforcement Act. This clearly suggests that Muhammad Arif sought bail in the challan case where he was facing the trial under sections 302307. A. P. C., read with section 5 of the Islamic Penal Laws Enforcement Act. When the proceedings in challan case are in progress and there is no order that the proceedings in that case shall stay we are constrained to say that the Shariat Court erroneously released" Muhammad Arif on bail in the challan case too. Grounds for bail even if made out in the private complaint cannot be, in the circumstances of the case, made a valid ground r.'T bail in the chaliun case, If the proceedings in the cliallau casa have not Ix-cn :,ta>cd (u;-. is the case here) and in the private complaint Muhammad An! lia; not been summoned under section 302/307, A. P. C.. read with -ection 5 of the Islamic Penal Laws Enforcement Act, bail in the complain: and not the challan, could be allowed under sections 14/15 of Islamic Pena! Laws Enforcement Act and not for any other offence in which, he has been summoned in the private complaint, IT we allow bail in some other nce not known to the private complaint, the order may be considered have been passed in vacuum and can be said to be non-existent. In the challan case, as said elsewhere the learned District Crimi nal Court. after recording the statement of the accused, Muhammad Anf. issued process against Muhammad Siddique who was also summoned in the private complaint. This means that the District Criminal Court fell advised to proceed with the trial of the accused simultaneously in both the cases. In the circumstances of the case we feel that the learned Shariat Court has passed the impugned order probably under the erroneous belief that the proceedings stand stayed in the challan case. 19. The accused were identified in moonlit night. Whether the lower Court would believe the identification to be correct in the moonlit night is a question which is entirely the function of the trial Court and the Shariat Court, while allowing bail in such like matter, fell in error to hold that ii :s a case of further inquiry. It in fact amounts to pre-judging the issue which is no function of the Shariat Court while disposing of the bail matter. Whether moonlit night would provide a sufficient material to hold that the .'vended -vere identified is a function of the trial Court arid no artificial c<>n- -trueti'm can be given to the words "further inquiry". 20. Another factor that there was delay in the disposal of ihe case also weighed with the Shariat Court in releasing the respondent on bail. We h;.\e looked int'1 the interim orders of the various dates and we feel that this deiav h.-'d occurred due to the conduct, of the accused or his counsel, No doubt. some other factors are also noticed which have caused delay in the decision of the case but on facts established, the delay has not been caused mainK due to the inaptitude of the prosecution. 2\ Our considered view, therefore, is that the discretion in allowing bail to Muhammad Arif, respondent, under section 302/307, A. P. C.. rcac with section 5 of the Islamic Penal Laws Enforcement Act, 1 974, has no! been exercised in a legal fashion and needs our interference. The upshot of the whole discussion is thjt while accepting this appeal we recall the bail order passed by the Shariat Court on 30-9-1984 and restore the order of the District Criminal Court dated 27-8-1984, The can cellation of the bail order will naturally have its legal consequence. (TQM) Appeal accepted.
PLJ 1985 SC (AJK) 34 PLJ 1985 SC (AJK) 34 Present : raja muhammad khurshid khan, C. J, & sardar said muhammad khan, J Ch. MUHAMMAD BASHIR -Appellant versus Ch. MUHAMMAD ZAMAN and 2 OthersRespondents Criminal Appeal No. 7 (also No. 9) of 1984, decided on 10-11-1984. Per Sardar Said Muhammad Khan, J (i) Bail-
Grant of Alibi Plea ofCourtPowers ofPlea of alibi sup ported by reliable evidence Held : Bail to be (competently) allowed to accused person on such score Held further : There being no restriction on Court's power to take into consideration plea of alibi or any other plea supported by documentary or oral evidence or (even) circumstances raising reasonable possibility of same being true, reliability of evidence in support of any such plea to be seen in light of peculiar circumstances of each case. [P. 38J.fi (ii) Precedents
Criminal case Observations in Held : Observations made in criminal case being product of peculiar circumstances of that case, same to be hardly authority for another case Such observations, however, to be relevant for enunciating general principle of law on relevant point. [P. 36]A Per Raja Muhammad Khurshid Khan, £J : (iii) Bail
Application forOrder onHeld : Order on bail application must be carefully balanced and weighted in scales of justice and requirements of relevant law as contained under sections 497 & 498, Criminal Procedure Code (V of 1898)Held further: Liberties of citizens being involved, such order on bail applications not to be routine ones. [P. 39]C (iv) Bail
Order ofInterference withHeld : While interfering with orders of bail, there should be some strong grounds e.g. order be perverse or manifestly wrong Heinousness of offence, however, by itself not to be sufficient to take away discretion. [P. 40]D & E Mr. Abdul Khaliq Ansari, Advocate for Appellant (in Cr. App- No. 7 of 1984). Sardar Rafique Mahmood Advocate General for Appellants in Cr. App. No. I of 1984(. Kh. Ali Muhammad, Advocate for Respondent. judgment Sardar Said Muhammad Khan, J.The above entitled appeals have been directed against the order of the Shariat Court dated 21-6-1984, whereby the respondents Nos. 1 and 2 were released on bail in a case registered dagainst them under Sections 4/5, 14/15 of the Islamic Penal Laws Enforcement Act, 1974, read with Sections 307/147, 148/149, A. P. C. As both the above entitled appeals, one filed by the State and the other by the complai nant, are directed against the same judgment, so these are hereby disposed of by this single order. The brief facts of the case, as alleged by the prosecution, are that on 9-4-1984 at about 10.55 a.m. complainant, Muhammad Bashir, alongwith Muhammad Hanif (deceased). Muhammad Akram, Muhammad Mahroof and Sajawal Khan were on their way to Mirpur City in two cars ; one oi tiiese cars by which Muhammad Akram was travelling, was being driven by Muhammad Hanif, while the other was occupied by the complainant and his uher companions mentioned above. When the said cars reached a lonely place at the roadside, complainant and his companions saw a Suzuki parked on the roadside and the accused persons, 13 in number, including Muhammad Zaman and Mangti, respondents, who were all armed with rifles and were hiding themselves in the bushes came out of their hideaut ; Muhammad Zaman and Magti, respondents, shouted 'Lalkara' that nobody should escape alive. On this, all the accused including the respondents resotred to firing which resulted in the instantaneous death of Muhammad Hanif, while two other members of the complainant party, namely, Muhammad Akram and Sajawal also sustained fire-arm injuries. The motive for the attack was stated to be the old enmity between the rival factions due to civil litigation between them and also as a dispute relating to some electricity connection. It has been alleged in the F. I. R. that prior to the occurrence some quarrels had also been taken place between the parties. The respondents sought bail in the District Criminal Court, inter alia. on the ground of the plea of -alibi' which was supported by affidavits sworn by three senior Advocates, namely, Raja Mjhammad Siddique. Mr. B A. Sheikh, Ch. Ali Muhammad and Muhammad Sarwar, a clerk of the Dis trict Criminal Co art. According to the aforesaid affidavits, the respondents were present in the District Courts premises on the fateful day of occurrence at least from 9.00 a.m. to 9.30 a.m. The Shar.at Court concluded on the tentative assessment of the contents of the aforesaid affidavits that the respondents were seen in the Court premises at least 10 to 15 minutes prior to the occurrence and thus there was reasonable possibility that they might not be present at the place of occurrence which is approximately at a dis tance of 24 miles from the Court premises. One of the deponents, namely, Muhammad Sarwar, has deposed in his affidavit that the news about the occurrence was heard by him after about 5 to 7 minutes when he had last seen the respondents in the Court premises. The case of the respondents, which was also supported by the affidavits, is that they had come to the District Courts on the day of occurrence in connection with the Election Petition, which was filed by them and was fixed for hearing on that date. but as the Presiding Officer of the Election Tribunal happened to be out of Station, the case was adjourned. The plea of 'alibi', supported by affidavits, did not weight with the District Criminal Court and the bail was refused to the respondents. Con sequently, the respondents sought bail in the Shariat Court, which on the tentative assessment of the contents of the affidavits in support of the plea of'alibi' expressed the view that there was a reasonable possibility that the plea of 'alibi might be genuine and thus the case being one of further enquiry \vithin the meaning of Section 497. Cr. P. C.. the respondents were entitled to bail. Lengthy argumenti were addressed at the bar and various authorities were cited by the learned counsel for the parlies in support of their respec tive contentions. However, a perusal of said authorities has revealed that some of them have no relevancy either to the facts of the case in hand or the legal points raised by the Seamed counsel for the parties, therefore, we do not propose to deal with such authorities in this judgment. It may also be observed here that observations made in one criminal case are hardly an authority for another case because such observations are product of a pecuisar circumstances of the case in which the same are made. At the mo>t. such observations are relevant only for enunciating the general princi ple of law on a relevant point, it has been argued by Mr. Muhammad Abdul Khaliq Ansari, the Seamed counsel for the appellant, that the plea of 'alibi' cannot be consi dered at the bail stage and it is the function of the trial Court to give verdict on any such plea, otherwise, it would amount to pre-empt the func tion of the trial Co.url, The learned counsel has maintained that while considering the bad matter at the initial stage, pleas like 'alibi , self defence etc. should not be taken into consideration and only the rnatena! placed on the record by the prosecution is to be tentatively assessed so us to reach a conclusion as to whether there appear reasonable grounds to believe that the accused is guilty of an offence punishable with death or transportation for life, in support of his contention he has cited following authorities : () -Muhammad Shafique v. The State'' (NLR 1978 Cn-iunal 298). U) "Haji Qaroar Aii v. The State" (NLR 1978 Criminal 712). (3) "Milho v. The State" (PLJ 1978 SC 356). U) "Gbutaai Nabi v. The State" (1968 P. Cr, L. j. 186). "Qsmar Din v. The State" (1975 P. Cr. L. J. 133). (5) "Khaditn Hu«sain v. The State" [PLJ 1982 S, C. (AJK) 18j. (6) < Ibrar Ali v. The State" (NLR 1980 Criminal (Lah.) 74). (7) "Muhammad Hussain v. Muhammad Anwar" (197 SCMR 151). (9) Ch, Zahoor Ilahi v. The State 1 ' (NLR 1980 Criminal (Lah.) 70!j. (10) ''Ch, Muhammad Shafi v. Muhammad Anwar Surams' (1975 SCMR 219). (11) "Ahmed Ali v. The State" (NLR 1980 U. C. 351). (12) Sansullah v. The State" (NLR 1982 S, C. J. 496). ! 13) Muhammad Yaqub v. lltafur Rehman (PLJ 1974 SC 40). (14) "Khalid Jarid Gillani r. The State" (PLJ 1978 SC 327). (15) "Cb. Muhammad Khan v. Sanaulluh" (PLD Wl S. C. 324). Out of the above referred authorities, cited by the learned counsel for the appellant, the view that a plea of 'alibi' or any other plea taken by t.se accused cannot be considered at the bail stage was expressed in the cases rpnnned as Ghulam Nabi v. The State" H968 P. Cr. L. J.) Qamar Din !, The State : " (1975 P. Cr, L. L 133) " Ch. Zahoor Haiti . Tlse State " (NLR 1980 Criminal (Lah.) 701] arid'"Muhammad Vaqub Khaa v. IStafur Rebioaa" (PLJ 1974 S. C. 40) . So far as the other authorities mention ed above are concerned, in those cases the Courts did not refuse to consider the plea of 'alibi 5 or the self defence ; rather the Courts rejected the bail applications uncr coming to the conclusions that either the evidence in support of such piea was insufficient or it did not inspire confidence or there wtre some other attending circumstances of the case which influenced the mind of the Courts while rejecting the bail applications. 11 may be observed here that in case reported as "Khalid Ja?id Gillani .. The State" (PLJ 1978 S. C. 327), the view taken in "Muhammad Yaqub v. Iltafur Rehman" (PLJ 1974 S. C. 40) was distinguished with the observa tions that Section 497, Cr. P. C. does not contain any restriction on the Courts" power to assess evidentiary value of the material placed by the accused on the record. Thus, the bail was granted on the ground that the piea of -alibi' was supported by an affidavit by a disinterested person, a Medical Officer of high repute, It was further opined that in bail matters material produced by an accused person in support of his plea should be considered alongwith the prosecution evidence while deciding a bail matter. In "N»dara v. Jaroai! Khan" (PLD 1968 S. C. 310), if was held thai while judging as to whether there are reasonable grounds to believe that the accused is g Jiity of an offence punishable with death or transportation for life, the Court should consider the accusation of the accused and the evi dence which the prosecution proposes to examine and ihz plea of defence, if any, raistd during the investigation or any oih$r special circumstance pleaded by the accused, In "Muhammad Husssin v. Muhammad Anwar'' (1975 SCMR 151), the piea of 'alibi' was raised by the accused at bail stage and affidavits in sup port of the said plea were sworn by twenty Advocates. The plea, in the circumstances of the case, was held enough to justify enlangement of the accused on bail by the High Court. A petition for leave to appeal was refused by the Supreme Court. In "Ch. Muhammad Shafi r. Muhammad Anwar Sanima'" (1975 SCMR 219), the accused was released on bail by the High Court taking into consideration the plea of 'alibi' supported by the affidavits filed by 24 Members of the Provincial Assembly. A petition for leave to appeal was sled in the Supreme Court, but the same was dismissed. The learned counsel for the respondents, Kh. Ali Muhammad, has also cited some authorities in support of his contention that the bail on the basis of plea of -alibi' if supported by a reliable evidence, has been frequently granted by the Superior Courts in Pakistan . Apart from the authorities referred to above, he also relied on the following authorities in support of his contentions. In "Ghislam Gfaaiis .-. The State" (1983 P, Cr. L. J. 2177), the peti tioner's plea of 'alibi' was considered at the bail stage with the observation that though the final determination with regard to the truthfulness of the piea was to be determined by the trial Court, yet the beneik of doubt even at the baii stage, is available to every accused In ; 'Khurshid Alam v. The State'' (1982 P. Cr. L. J. 1198). the accused was released on hail considering the plea of 'alibi', which was supported by the affidavits of 18 lawyers. In "Shabir Ahmed v. The State" (1980 SCMR 920), the bail was granied on the plea of -alibi' which was supported by one of the prosecution witnesses named in the F. I. R. In "Jtunat Bibi v. Sher Muhammad" (1968 SCMR 795), the bail was granted by the Sessions Judge on the plea of'alibi'. The High Court refused to cancel the same and a petition for leave to appeal filed in the Supreme Court was also dismissed on the ground thajt the Sessions Judge was entitled to c jnsider the plea of 'alibi' in the light of the affidavits pro duced in support of the same. It is ampiy clear from the survey of the case law on the subject that the weight of the judicial authorities is in favour of the view that the plea of 'alibi'if supported by evidence which is found reliable on tentative assess ment, the bail can be allowed to an accused person on that score. It may observed here that there ''s no restriction on the Courts' power to take into consideration the plea of'alibi'or any other plea which is supported by evidence, documentary or oral or even the circumstances sufficient to 'raise a reasonable possibility of same being true. The reliability of evidence in support of any such plea is to be seen in the light of peculiar circumstances of each case and it is open for the Court either to reject it or rely upon the same after making a tentative assessment. In our view, it is paradoxical to say that while considering as to whether there are sufficient grounds to believe that an accused is g-ility of an offence punishable by-death or transportation for life, only prosecution evidence or any other material placed on the record by the prosecution is to be looked into and evidence or material placed by an accased person seeking bail cannot be considered. It is our considered view that it is imperative for the Court of Law to consider any plea taken by an accused at the bail stage, alongwith the material placed by the proeecmion on the record in support of accusa tions levelled against the accused. Therefore, we respectfully disagree with the view taken in some of the cases referred to above that plea of 'alibi' taken by the accused cannot be considered while deciding a bail appli cation. It may be mentioned here that the learned counsel for the appellant has also cited case reported as "Kbadim Hussain v. The State" [PLJ 1981 S. C. (AJK) 18j, wherein the question of self defence was not gone into at the bail stage on the ground that there was no material to justify the plea of self defence and also because no such plea was taken under Section 242, Cr. P. C. It has not been stated as an absolute rule of law in the aforesaid case that the plea of self defence cannot be considered at all while consider ing a bail matter. In alternative, the learned counsel for the appellant has argued that assuming for the sake of arguments that the plea of 'alibi' can be consider ed at the bail stage, that bail should not have been allowed in the instant case, because in view of the learned counsel for the appellant, taking into consideration the contents of the affidavits filed by three senior Advocates, namely. Raja Muhammad Siddique Khan, Mr. B. A. Sheikh, Ch. Ali Muhammad and Muhammad Sarwar. the Clerk of the Court, it cannot be said thai it was impossible for the respondents to be present at the place of occurrence, i.e. at 10.00 a.m., when the occurrence is alleged to have taken place, because on the tentative assessment of the contents of the said affi davits it transpires that the respondents were seen in the District Court premises, which is at a distance of about 2| miles, at 9.30 a.m. and as such the accused-respondents had sufficient time to reach the place of occurrence to commit the alleged offence. We have thoroughly perused the contents of the affidavits and also considered the tentative" conclusion drawn by the learned Judge of the Shariat Court and we are of the view that the said conclusion cannot be termed as violative of any norm of rule of law on the subject. As it is neither possible nor proper for us at this stage to express a final view with regard to the genuineness or otherwise of the plea taken by the respondents, we refrain to comment any farther. So far as the argument that if the bail allowed by the Shariat Court on the plea of 'alibi' is not cancelled, the trial Court may be influenced even by the tentative assessment of the affidavits in support of the plea at the time of final disposal of the case is concerned, we are of the view that it has been very rightly emphasised by learned Judge in the Shariat Court in the impugned order that tentative conclusion drawn from the material in support of the plea should not influence the mind of the trial Court while judging the guilt or innocence of the accused after the trial. We fully endorse the view expressed by the learned Judge of the District Court with the observations that if an opinion is expressed with regard to the evidence on record or on the other material, whether placed by the prosecution or the accused, that should not be taken as conclusive and should not weigh with the trial Court or any subordinate Court while determining guilt or innocence of the accused at the proper stage. The opinion expressed with regard to any piece of evidence at the bail stage is made only on the tentative view of the evidence and is not a substitute for the conclusive view to be arrived at, after recording the evidence of the prosecution and that of the defence, if any. In the light of what has been stated above we are of the opinion that this is a case of farther inquiry, as has been held by the learned Judge in the Shariat Court, and there are no valid reasons to interfere with the dis cretion exercised by the Shariat Court in favour of the respondents. Hence, the appeals fail and are hereby dismissed. Raja Muhammad Kburshid Khan, C. J. -I have had the "advantage to read the judgment ably prepared by my learned brother Mr. Justice Sardar Said Muhammad Khan. I am in total agreement with the learned Judge. However, I would like to add the following : It is settled law that orders on bail applications should not be consideren as routine orders involving, as they do, the liberties of the citizens they must be carefully balanced and weighed in the scales of justice and the requirements of the relevant law as contained under sections 497 and 498, Cr. P. C. There is, however, a further limitation on the Courts' discretion with regard to offences which are punishable with death or transportation for life which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. The reasonableness of the ground has to be shown by the prosecu tion by displaying its cards to the Court as it may possess or is expected to possess as demonstratory evidence in the case both direct and circumstan tial. Tt would, however, be incorrect to say that a person accused of an offence punishable with death or transportation for life cannov be admitted to baii except on grounds of age, sex or infirmity as section 497. Cr, P. C. also envisages that bail shall be refused if there appear reasonable grounds for believing that toe person accused has been guilty of offence punishable with death or transportation for life and bai! will he allowed if such grounds do not exist to the satisfaction of the Court, It would thus appear that if the Shariat Court/High Court forms an opinion that such reasonable grounds do not appear and there are sound grounds for further inquiry (as is in the present case), the prayer for baii may be allowed. The determination whether baii will be allowed to a person accused of an offence punishable with death or transportation for life, however, will depend on the facts of each case and no hard and sound princi ple or artificial rule is permissible in defining the classes of cases in which the Shariat Court/High Court should or should not exercise its discretion in al lowing or disallowing the bail. T'.ie matter is essentially in the discretion of the Shariat Cour/jHigh Court and only limitation on the exercise of that dis cretion, apart from the legal restrictions contained under sections 497-498, Cr. P.C. is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. The view of the Shariat Court / High Court always carries weight unless it is shown to be perverse or based on view which no reasonable man will take. It, therefore, follows that where the Legislature itself does not define the limits or the grounds for the xercise of discretion, the Courts are not expected to lay down rules to fatter that discretion and it seems to me that while interfering with the orders of bail there should be some strong grounds as for instance that the order is perverse or manifestly wrong. Release of an accused on bail may rest on the accusation levelled against him, the report under section 173, Cr. P. C-, the evidence the pro secution proposes to examine and the plea of defence, if any. raised during the investigation or any other special circumstances appearing in favour of jthe accused cr agiinst th-j prosecution. Therefore, heinousness of the nffence by itself is not sufficient to take away the discretion I feel that the iShariat Court dealing with the application has exercised the discretion in a Segal fashion and formed its impression which could legally be formed. The discretion, therefore, cannot be disturbed. The theory of alibi is the reason able possibility in the circumstances of the case and it found favour with the Shariat Court for good reasons. The discretion so exercised by the Shariat Court , therefore, cannot legally be disturbed. Both the appeals thus merit no consideration and. fail. (Aq. By.) Appeals dismissed,
PLJ 1985 SC (AJIO 40 PLJ 1985 SC (AJIO 40 Present : raja muhammad khurshid k.han & shee zamman choudhrv, JJ NUSRAT FATIMA Appellant versus AZAD GOVERNMENT OF THE STATE of Jammu & Kashmir through Chief Secretary, MuzafTarabad and 2 OthersRespondents Civil Appeal No. 27 of 1981. decided on 25-1-1984. (i) Laches -- Meaning of Held : Delay considered sufficient to prevent party from obtaining relief in given circumstances to be technically called laches. [P. (ii) Writ Jurisdiction- Laches Effect of Claimant remaining slept over his right for great length of time Held : High Court normally to refuse its aid to (such) stale claims. [P. 43]5 (iii) Writ Jurisdiction - Laches Effect '"of Held : Delay per se normally not to be ground for refusal of its aid by Court Party by its conduct waiving its claim or putting other party in situation of disadvantage by its conduct and neglect Held : Lapse of time and delay to be most important in such cases. [P. 43]C PLD 1970 Lah. 569 ref. (iv) Writ Jurisdiction --- Laches Effect of Petitioner remaining slept over for about nine months after cancellation of her allotment Fresh applications called for during such period and people applyiag and depositing earnesting amount of price Held: All formalities except drawing of lots having been completed before filing of writ petition, delay and neglect of 9 months on part of petitioner to constitute laches under circumstances. : Pp. 43 & t4]D Mr. B. A. Sheikh, Advocate for Appellant. Ch. Muhammad Taj, Advocate for Respondents No. 2 & 3. .\'emo for Respondent No, 1. judgment Sher Zaman Chaudhry, J. This appeal by leave directed against the judgment of the High Court passed on 12-4-1981 dismissing the writ petition of .\fst Nusrat Fatima appellant arises in the following circumstances; that Nusrat Fatima appellant applied for the allotment of 1 kanal plot in Sector F-3 New Mirpur Town. On lots drawn in March, 1980, by the Allotment Committee the appellant was declared successful by the said Committee. Before the allotment could be made formal and chit of allotment issued, amendment had been made in M. D. A. Ordinance on 12-6-1980 This was followed by a Government Notification issued on 23-6-1980, whereby all the allotments (including that of the appellant) made in the month of March, 1980 by the Allotment Committee stood cancelled. The Government, as appears from the notification, influenced by the general public protest and in keeping with the main object of the allotment i.e. the rehabilitation and resettlement of Mangla Dam affected persons issued the above referred notification which is now under challenge It may be stated here that to achieve the main purpose of the allotment under the notification 85% of the plots were to be allotted to the Mangla Dam affected persons, 10% to those belonging to Mirpur District and the rest to other categories of people. 2. In pursuance of this notification applications for allotments were invited from the general public by the Al oiment Committee. Many from among the public applied afresh, so did the appellant. She, however, feeling aggrieved by the Government Notification dated 26-6-1980 also approached the High Court by way of writ petition for the redress. Through this petition filed on 8-3-1981, was challenged the validity of the said notification. The learned Judges in the High Court on consideration that the petitioner-appellant having slept over her right had acquiesced for a great length of time, dismissed the petition in limine, 3. To challenge this order of dismissal of her writ petition passed by the High Court, the appellant filed a petition for leave to appeal in the Supreme Court, From among the various grounds listed in the petition leave was granted to consider: (a) as to whether laches per se was a ground sufficient for refusing a relief in the writ petition; (b~) whether in fact there was a delay amounting to negligence on the part of the petitioner-appellant which disentitled her to any relief. 4. On the first point formulated for the consideration Mr. B. A. Sheikh, the learned Advocate for the appellant, argued that the Courts generally would not decline the relief on the ground of laches unless a prejudice, which is wanting in this case, is caused to the other side. If however by allowing such a relief the opposite party is found to have been placed in a position of di'advantage because of delay, the Court would refuse its aid to such a petitioner. In the present case there has been a delay of only 9 months, which according to the learned Advocate was neither of such a length of time that could be termed as sufficient ground for the dismissal of the petition nor has there any prejudice been caused to the opposite party. The learned Judges of the High Court while accepting the principle that delay, perse, would seldom be a ground for the rejection of the writ petition could not under law dismiss the petitioners writ petition without pointing out if any prejudice was in fact caused to the opposite party. The dismissal of the appellant's pct-tion in limine, according to the learned counsel, was a grave error in law and as such the impugned judgment could not be maintained. 5. Controverting the arguments advanced on behalf of the appellant, Mr. Muhammad Taj Chaudhry, the learned Advocate for respondents Nos. 2 & 3, argued that the appellant had been sleeping over her right for about 9 months. Soon after the Government notification, dated 23-6- 1980, the Allotment C< mmittee through advertisement had invited the general public to apply for the allotments. Large number of people including the appellant applied afresh under the new regulations and had deposited the earnest money. All the processings for the final allotments had been completed. The appellant had the knolwedge of the cancell;i'ion of the previous allotments under the notification and the subsequent proceedings taken by the allotment Committee. Her applica tion for the fresh allotment is manifestation of her awareness about the notification and cancellations made thereunder. There is not a word of explanation for this inordinate delay in the writ petition. By admitting or allowing such a delayed claim prejudice wiil be caused not only to the interest of the respondents but also to the interest of about eight hundred other allottees who had applied under the new regulations and are not before the Court as the appellant never sought any relief against them. The impugned order passed by the learned High Court, argued the learned counsel, was under the circumstances just and prefectly in accordance with law. 6. In view of the arguments advanced by the learned cauasel for the respective parties and in order to have correct perception of the points involved it must first be ascertained as to what precisely the doctrine of laches means. The doctrine in its essentials is based on the maxim ' Vigil antibus, non dormientibus jura subveniunt" which means equity aid the vigilent and not indolent or delay defeats equity. The delay which under the given circumstances is considered sufficient to prevent a party from obtaining relief is technically called laches. The High Court would normally, in exercise of its extraordinary writ jurisdiction, refuse its aid to stale claims where the claimant by sleeping over his right for a great length of time had acquiesced. As to what length of time, would constitute laches depends upon and varies according to the facts of each individual case. The doctrine will not however be applied a-bitrarily. The delay, per se, would not normally be a ground for refus al of its aid by the Court. Its application will only be resorted to where in the estimation of the Court, it would be unjust to allow the remedy, either because of party as by its conduct done that which might fairly be regarded as amounting to a waiver of it or where by his cjndjet and neglect he has though perhaps not waiving that remedy, yet nas put the other party in a situation of disadvantage in which it would not be reasonable to place him if the remedies were to be asserted. In either of these situations lapse of time and delay are most important. The principle was followed in Mian Miraj ud-Din v. The Senior Superintendent of Police Lahore (PLD 1970 Lah. 56!). z> 7. The question, in view of the principle discussed above, now requiring determination is whether in the present case the other side has been put to a position of disadvantage because of inaction or neglect of the appellant, The perusal of the record in the present case reveais that the Government notification dated 23-6-1980 whereby the allotments made during the month of March, 1980, stood cancelled was followed by invitation by the Allotment Committee to the general public for fresh applications under the new regulations. In pursuance to this call through advertisement quite a large number of persons from the general public applied for the allotments of plots and deposited the part of the stipulated price as required under rules. The appellant too applied afresh. All the necessary formalities had been completed and the proceedings taken by the Allotment Committee. What was left was only the drawing of lots. So, therefore, it cannot be said that the appellant had no knowledge of the cancellation of the allotments nor has such a plea been taken by the appellant in her writ petition before the High Court. She for no valid reasons kept sleeping over the matter from 23rd June, 1980, till Sthi March, 1981, when the writ petition was finally filed. During this period; of inaction and neglect on the part of the appellant fresh applications] had been called, people applied and deposited the earnest amount of the price. The formalities had been completed, proceedings finalized and only the drawing of lots as said earlier remained to be done. This for mality was completed first in the month of March and then in November 1981. So, therefore, the delay and neglect of about 9 months on the part of the appellant under the circumstances constitute laches. The principle can will be illustrated by reference to an observation made by Lord Camdon in Smith v. Klay (1767) 3 Bro c.c. 639 n at 640. While deciding that case the learned Judge observed: "Nothing can call forth this Court into activity but conscience, good faith and reasonable diligence, where these are wanting the Court is passive and does nothing.'' Diligence in the present case, we find, is hopelessly wanting. We, there fore, are in agreement with the learned counsel for the respondent that the appellant if aided in pursuit of her stale claim it would not only place the respondent in a position of disadvantage but would also cause pre judice to about at least eight hundred allottees of the plots, many of whom might have by now constructed their houses as well and against whom the appellant neither claimed any relief nor have they been impleaded as party in the proceedings. 8. We have with care gone through the reports of the cases referred to by the learned counsel for the appellant. The facts in those cases are quite distinguishable and are of no help in the present case In Mohsan Khan and another v. Chief Settlement Commissioner, West Pakistan Lahore and others (1969 SCMR 306) a plot claimed by the petitioners to have been allotted to them was transferred by the Additional Settlement Commissioner to a lady who was a Manager of a School to be used as play ground for the school children. The appeal of the petitioners, before the Settlement and Rehabilitation Commissioner failed and the learned Settlement Commissioner finding that neither the appellants nor the school manager were entitled to the transfer ordered the auction of the plot in 1964. Their application for transfer of the plot filed in 1966 was rejected by the Settlement Commissioner. The writ petition filed in the High Court in 1968 failed on the ground of laches. The delay in that case was of two years. But then as already stated in the earlier part of this judgment, what period of inaction or neglect would constitutes laches, varies with the facts of each case. Similarly the facts in case reported in Burmah Oil Co. v. Trustees of the Port of Chittagong (PLD 1962 SC 113), Mst. Zainab Bibi and 3 others v. Commissioner Lahore Dirision, Lahore and 3 others (PLD 1976 Lab. 820), are as already observed distinguishable from the one in the present case. 9. On careful consideration of the available record we find that delay and neglect for about 9 months on the part of the appellant was of such a length of period in the circumstances of this case that constituted laches and caused prejudice to the other side. Although the impugned judgment does contain no such mention of the prejudice to the opposite party nevertheless as on record it has been found that by allowing the claim of the appellant other side would be placed in a position of disadvantage because of delay and neglect which amounts the laches on the part of the appellant. We do not think it proper to interfere with the finding arrived at by the learned High Court. The order under appeal is just and judicious. It is, therefore, maintained. For the aforestated reasons the appeal is dismissed with costs. (SHR) Appeal dismissed.
PLJ 1985 SC (AJK) 45 Present : SARDAR SAID MUHAMMAD KHAN & SHER ZAMAN CHAUDHRY, JJ PLJ 1985 SC (AJK) 45 Present : sardar said muhammad khan & sher zaman chaudhry, JJ STATEAppellant Versus MUHAMMAD NASIR KHAN and 2 Others-Respondents Criminal Appeal No. 16 of 1983, decided on 18-3-1985. (i) Bail
Grant or refusal ofReasonable ground regarding existence of prima facie case tending to connect accused with crime appearing in caseHeld : Bail to such accused charged with offence punishable with death sentence imprisonment for life not ordinarily to be per missibleHeld further: Court to form prima facie view from material available on record and not to conduct deeper appreciation or to probe into merit of case to determine existence of reasonable grounds or making out of prima facit case against accused. [Pp. 47 & 48]/4 (ii) B»il
Grant of-Further enquiryCase ofInference regarding guilt of accused not drawn from material available on recordHeld : Case to be that of further enquiry covered under Part 2 of S. 497, Criminal Procedure Code (V of 1898). [P. 48]B (iii) Bail
Grant or refusal of Affidavits of eye-witnesses Filing of Effect ofAffidavits neither sworn nor presented before court by deponent themselvesSuch "deponents" also not appearing before court to support such documents at any stage of proceedingsOath Commissioner attesting such documents also not verifying identity of deponentsHeld : Contents of such documents not to be treated as evidence within terms of Evidence Act (I of 1872). [P. 4S]C PLJ 1985 Cr. C. ( Karachi ) 26 ref. (iv) Bail
Cancellation ofActive role clearly attributed to respondents in FIRRespondents allegedly participating in occurrence resulting in fatal injuries to one and simple injuries to 3 eye-witnessesHeld : Order allowing bail to respondents to be set aside in circumstances. [P. SOJD & B Sarctar Rafique Mahmood, Advocate General for Appellant. Raja Sher Muhammad Khan, Advocate for Respondent. Raja Mumtaz Hussain Rathore, Advocate for Complainant, JUDGMENT Sher Zaman Chaudhry, J.Respondents-accused charged with the offences under sections 302, 307, 341, 392, 148, 149 and 147 APC read with sections 5/15 of Islamic Penal Laws Act and section 17 of OfL'nce against Property (Enforcement of Hadood) Ordinance, after having been unsuccess ful in the District Cnminal Court, were allowed the concession of bail by the Shariat Court, This appeal is for the cancellation of it. 2. The facts as claimed by the prosecution briefly stated are thai Muhammad Nazir complainant, a resident of village Draik, had a footwear store in Rawalkot city. On the morning of 9-7-1983, hi had gone to his shop to attend the da'ly routine. By noon his brothers Muhammad Hafique and Muhammad Hanif had also arrived in the bazar. Thsy purchased soms items of furniture, from Qaz! Munir. To hire a Suzuki van for the transportation of furniture to their village they contacted Muhammad Razak Suzuki driver who agreed to do the job on payment of Rs. 50/-. Later on, at about 4 P.M., when they tried to load the furnitureMuhaiimad Razaq accused changed his mind and declined to do the job This S;d to an altercation between the driver and Muhammad Rafique decease,., The complainant intervened to save the situation from develop'ng into an ugly scene. The matter ended there. Thereafter, at about 4-30 p. m.. another Wagon driven by Shah Behram was hired. The complainant accompanied by his brother Muhammad Rafique and his uncle Naqi Muhammad while going in the Wagon towards Manir crossing for loading the furniture was stopped in the crossing by Muhammad Razaq, Munammad Ishaque, Muhammad Saleem, Muhammad Nasir, Murraza and Muhammad Shafait accused who appeared on the scene armed with pistjl, knives and Laihies. Complainant, his brother and uncle were pulled out of the Wagon, attack ed and were inflicted injuries with 'Lathies and knives by the ^espondentsaccused and other co-accused. Complainant and hss brother Ralique were then hit by bullet shots fired from pistol by Muhammad Ishaqus. Their brother Muhammad Hanif who tried to rescue them was also attacked and injured by the accused party. While Muhammad Nazir complainant was lying injured Muhammad Ishaque accused is claimed to have taken Rs. 50,000,'- out of his pocket. In the meantime P. Ws. Muhammad Rashid Hasrat, Babar Hussain, Muhammad Riaz, Muhammad Arshad, Muhammad Razaq Khan and Shah Behrarn, attracted by the fight, are claimed to have arrive J on the scene. The accused party, it is claimed by the prosecution, launched this attack to avenge the previous incident that took place between Muhammad Razak Suzuki driver and Munammad Rafique. The accused-party then disappeared from the scene. 3. All the injured persons were then taken to C. M. H. Rawaiakot where Muhammad Rafique died on 16-9-1983 A case was first registered against the accused party under sections 307, 341, 39i, 147, 148 and 149 APC read with section 17 of Offences against the Property (Enforcement of Hadood) Ordinance and section 15 of the Islamic Penal Laws Act but later on when Muhammad Rafique died offence under section 302 APC read with section 5 of Islamic Act was also added. Respondents Muhammad Nasir, Muhammad Saleem and Murtaza were arrested by the police but other co-accused, namely, Muhammad Razaq, Muhammad Ishaque and Shafait evaded the arrest and are still absconding. Apart from Muhammad Nazir, Naqi Muhammad and Muhammad Hanif, the injured persons. Babar Hussain^, Arshad, Muhammad Razaq, Rashid Hasrat, Muhammad Riaz, Shah Behram and Muhommad Khurshid are also claimed to be the witnesses of the occurrence. The present respondents then through separate applications, moved by them, applied for bail but were refused this conces sion by the District Criminal Court vide, its order dated 11-10-1983. On appeal however, they were released on bail by the Shanat Court on the ground that 3 of the P. W$., whose affidavits were filed by the respondents in the District Criminal Court, have refused to support the prosecution to the extent of present respondents and that no fatal injury is alleged to have been caused to the deceased by these respondents. So, therefore, there exist;,' to reasonable ground in the estimation of the learned Judge, in the Shariat Court, to believe that they were guilty of offences punishable with death and imprisonment for life and that it was a case of further inquiry, 4 Feeling dissatisfied with the order of bail recorded on 5-11-1983 and announced on i2-l 1-1983, by the Shariat Court , the appellant now, through this appeal, seeks the reversal of it, - Sardar Rafiqve Mahmood, the learned Advocate Genera!, assisted by P.;:ja Mumtaz Hussain Rathore Advocate for the complainant, argued that ;t was a day light occurrence witnessed by altogether 10 witnesses, 3 of them were injured. The chaiian has been presented against the respondents and the absconding co-accused. There exists a strong prima facie case clearly connecting the respondents with the crime. Section 497 (2) of Cr. P C. has been misconstrued and misinterpreted by the learned Shariat Cour The order thus passed allowing bail to the respondents has been made for invalid reasons and in total disregard to the rules governing bail matt ts and has vitiated the impugned judgment which could not legally be maintained, submitted the learned Advocate General. 6 Mr. Sher Muhammad Khan, the learned counsel for the respon dent, on the contrary submitted that the fact that 3 of the eye witnesses, as appsars from their affidavits, filed by the respondents, have denied the respondents' complicity and participation in th; occurrence and that no fatal injuiry which resulted in Muhammad Rafique's death was inflicted by them, was a clear manifestation of the fact that it was a case of further inquiry. The impugned judgment was perfectly, m accordance with law. It was. therefore, according to the learned Advocate, open to no exception. Reference in support of his In order to have a correct perception of the point involved and for its proper determination it must first be ascertained as to what precisely is meant when it is said that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for Surther inquiry into his guiit as provided under section 497 (2) of the Code and whether the present case, in view of the material available on record, could be regarded as a case of further inquiry entitling the respondents' to the benefit of bail envisaged under part 2 of the section. 7. Bail to an accused charged with an offence punishable with death sentence or imprisonment for lite would not ordinarily be permissible if there appears reasonable ground that there exists a prima facie case tending, to connect him with the crime. To determine if reasonable grounds exist or a prima facie case appears to have been made out against the accused from the facts in a given case, a deeper appreciation or a probe into the merit of it is not required to be conducted. The Court has to form a prima facie view from the material available on record and see whether such material or evidcncs if left unrebutted may lead to the inference of guilt. If such tangible evidence exists then it will be a case wherein it could be said that there exist reasonable grounds for holding the belief required under the section disentitling the accused to the concession of bail. Where such an inference about his guilt could not be drawn it would then be said a case of further inquiry covered under part 2 of section 497. 9. The question that next needs resolution is whether the impugned judgment allowing bail to the respondents has been passed by the Shariat Court in accordance with the rules governing the bail matters. We have carefully examined the material available on record including the police diaries. Altogether 10 persons are claimed to be the witnesses of occur rence. Except Muhammad Khurshid all others are named in the F. I R. Out of these Rashid Hasrat, Muhammad Riaz and Shah Behram, on the basis of their affidavits by the respondents before the District Criminal Court, are claimed to have denied the presence of respondents on the scene at the time of occurrence. From the perusal of the impugned judgment, the learned Judge in the Shariat Court appears to have been impressed by these affidavits and also by the fact that no fatal injury on the person of the deceased is attributed to the re c pondcnts. 10. With regard to the affidavits, the-e could not be made basis for the conclusion that were arrived by the Shariat Court for the reasons that 3 of these affidavits attested on different dates were filed on behalf of Shah Behram One relating to Muhammad Nasir respondent was attested on 23-7-1983 while other 2 were attested in Sept. 1983. One related to Saleem and the other to Muhammad Naqi and Muhammad Shafait espondents. Three others on behalf of Muhammad Riaz relating to Nasir, Saleem and Murtaza attested on 18-7-1983. 8-9-1983 and 10-9-1983 respectively were filed by the respondents. While another attested on 10-9-1983 was filed on behalf of the P. W Rashid Hasrat, according to which the deponent except the absconding accused neither knew other accused nor could he recognize because of confusion that prevailed during the occurrence. All these documents were neither sworn nor presented before the District Criminal ourt by the deponents themselves, They are not found to have appeared before the Court to support these documents at any stage of the proceedngs. These have been attested by the Oath Commissioner but without any verification of the identity of the deponents. The contents of these docu ments could not in our estimation, therefose, even be treated as evidence within the terms of Evidence Act. We are supported in our view by a judgment of Karachi High Court in case titled 'Allahdito and another v. The State' [P. L. J. 19»5 Cr. C. ( Karachi ) 26] wherein while dealing with the proposition Mr. Abdul Hayee Kureshi, Actg. C. J. observed : "There is a growing tendency in the Sessions Courts to take notice of and rely on ex parts affidavits of prosecution witnesses, stating that the accused were, not guilty and minimising the extent of their guilt. These affidavits are not sworn in the Courts, but before some Oath Commissioners, and the contents thereof are not At p. 28 evidence within the meaning of the Evidence Act. The deponent's averments are not tested by Courts and normally the Courts do not even compare the contents of earlier statements of these witnesses with the statements made in affidavits and such affidavits would normally be of no value, unless there are very strong circumstances to indicate that the police investigation was dis honest' ' The learned Shariat Court however, it seems, did not think it necessary to consider this vital aspect of the case. The impugned judgment having been based on invalid reasons relating to the point was, in our view, violative to the rules that governed the bail matters. Besides, the fact that cannot be lost sight of is that there are still 7 P.Ws. who, from their statements recorded under section 161 of the Code of Cr. P. C., appear to be the witnesses of occurrance. Three of these are injured witnesses Without adverting to their statements clearly connecting the respondents with the crime and making out a prima facie :ase, the finding by the Shariat Court that it was a case of further inquiry was, in our view, unwarranted in law. The Court had to ascertain whether there existed a prima facie case on the consideration of all the material available on record. The finding on the point thus arrived at by the Shariat Court for having been based on invalid reason could not bs maintained. We have also gone through the reports of the cases referred to by the learned Advocate for the respondents. The facts of these cases arc quite distin guishable from the one now under consideration. In those cases all the P.Ws. had, by their affidavits before the Court, refused to attribute any part to the petitioner-accused. We are, therefore, in agreement with the learned Advocate-General that interference by the Shariat Court with the order of District Criminal Court, which was passed in proper exercise of the discretion vested in it, was unwarranted and violative to the rules govern ing <he bail matters. 11. Another reason that weighed with the Shariat Court for holding the case relating to the respondents as of further inquiry was that fatal injury that resulted in the death of Muhammad Rafique deceased has not been attributed to any of the respondents. The injury that proved fatal was a bullet shot fired from a pistol by Muhammad Ishaque co-accused The respondents-accused are only claimed by the prosecution to have been armed with 'Lathies' and are alleged to have been inflicted simple injuries to the complainant party. The case, according to the learned Shariat Court , was of a further inquiry and as such they were entitled to the concession of bail, 12. We have given our careful thought to the point involved. The case of the prosecution is that all the accused including the respondents, being members of unlawful assembly armed with weapons like pistol, knives and Lathies, had acted in preconcert. So, therefore, each one of them, according to the prosecution, was responsible and a clear prima facie case connecting the accused-respondents with the crime stood established. We have carefully gone through the F.I.R., Medico legal reports and the statements of P.Ws. recorded under section 161 of the Code. Considering the evidence it cannot be said that there existed no prima facie case. It is not possible, in our view, at this stage to rule out their particiption jn tfce offence with which they have been charged. The proposition came to be considered in Hakim Ali and 3 others v. The State (PLJ 1979 SC 384. It was contended on behalf ot the petitioners in that case that they were unaimcd and were not claimed to have caused any injury to the deceased.. While dealing with the point Mr. Nasim Hasan Shah, J. observed: ' The principal argument in support of the plea for bail is that the fatal injury as well as other injuries were caused by sharp-edged weapons and according to the F.I R. are attributed to Muhammad Azam and Mian Khan co-accused who were armtd with knives, the petitioners being empty-handed are not liable to be convicted for offences under section 302/307, P.P.C. But they are shown at accompanying Muhammad Azam and Mian Khan accused when they attacked the complainant party and there is a specific allegation against the petitioners that they clasped Muhammad Arshad and Muhammad Afzal P.Ws, to enable and facilitate co-accused Muhammad Azam and Mian Khan to inflict knife injuries on their persons. As such, it is not possible to rule out, at this stage, their participation in the offences with which they have been charged." In Iqbal v. State (1982 SCMR 84} while considering the point Mr, Dorab Patel, J. observed:- "It is no doubt that the petitioner was allegedly armed with a stick and that no injury with a blunt weapon attributed to him was found on the body of the deceased. But that circumstance alone does not necessarily exculpate him. From the F.l.R. it appears that accused acted in preconcert and the petitioner was also assigned the active role of having taken out the money from the pocket of the deceased after he had been shot dead at the spot." In the instant case active role has clearly been attributed to the respondents in the F I R. Besides, there are statements of 7 P.Ws., 3 of them injured. according to which the respondents are claimed to have actively D participated in the occurrence. It cannot, therefore, under the circum stances be said that no prima facie case appears to have been made out against them. For the foregoing reasons we find that the learned Shariat Court by its failure to attend to the points involved in their proper perspective have acted contrary to the rules governing the bail matters. The impugned judgment allowing bail to the respondents for having been based on invalid reasons and on superificial view of the points involved is, therefore, set aside. Since the challan has been presented, the respon dents-accused will be at liberty to apply for bail afresh if they so feel advised after the statements of injured witnesses have been recorded. Their bail bonds stand cancelled. Appeal accepted. (TQM) Appeal accepted
PLJ 1985 SC 90 PLJ 1985 SC 90 [Appellate Jurisdiction] Present : muhammad haleem, CJ ; aslam riaz hussain, e>r. nasim hasan shah ; zaffar hussain mirza & M. S, H, quraishi, JJ NOOR MUHAMMADPetitioner versus SARWAR KHAN and 2 Others- Respondents CPSLA No. 777/1984, decided on 28-10-1984. (i) Constitution of Pakistan , 1973
Arts. 185 & 199 and Provisional Constitution Order (CMLA's 1 of 1981)Art. 9 Court having jurisdiction Orders passed by Challenge to Writ petitions Tendency to file Held Court having jurisdiction to decide matter to be competent to do so lightly or wrongly and mere fact of decisions on (particular) question of fact or law being not correct not to necessarily render it with out lawful authority and certainly not iilega!-Tendency increasing to file constitutional petitions in such cases of courts having jurisdic tion to pass orders Held : Tendency to file such constitutional petitions tending to clog superior courts with frivolous lit'gation and causing unnecessary delays in disposal of other cases, same to be curbed with strong hand. [P, 93W & C PLJ 1981 SC 895 ; PLJ 1974 SC 60 & PLD 1963 SC 704 ref. (ii) Constitution of Pakistan , 1973
Arts. 185 & 199 and Provisional Constitution Order {CMLA's 1 of 1981)Art. 9Leave to appeal Frivolous petition for Dis missal ofOrders passed by Executing Court as well as that passed by Additional District Judge (in revision) neither illegal nor passed without lawful authorityHeld : Constitutional petition (challeng ing such orders) not to be competent Held further : Petition for seeking leave to appeal against order of High Court dismissing writ petition being frivolous, same (also) to be dismissed. [P. 92\A (iii) Provisional Constitution Order (CMLA's 1 of 1981)
Art. 9 See : Constitution of Pakistan , 1973Arts. 185 & 199. [Pp. 92&93]x4, B&C Mian Saeedur Rehman Farrukh, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner. Date of hearing : 28-10-1984. order Aslara Riaz Hussain, J. Noor Muhammad Petitioner seeks leave to appeal against the order of ths High Court dated 30-5-1984 dismissing his writ petition. 2. The facts which led Noor Muhammad to file the writ petition, briefly, are that Muhammad Sarwar Khan filed a suit for recovery of a sum of Rs. I0,000/- against one Qutab Din. The suit was decreed on 12-10-1981. Letter's appeal against the decree was dismissed on 7-2-1983 by Additional District Judge, Okara. 3. During the pendency of the proceedings in the trial court, Noor Muhammad petitioner/defendant had executed a surety bond n 6-4-1980 to secure the rights of a decree holder. The surety bond which, besides marginal witnesses, also bears signatures of Syed Maqbool Hussain Shah, Advocate, who identified the surety before the Court, was placed on the file of the Court. 4. After the suit was decreed in favour of Muhammad Sarwar Khan he applied for its execution, whereupon the Executing ourt issued warrants of attachment against Noor Muhammad on 5-6-19S3, But Noor Muhammad objected to the execution of decree on the ground that warrants of attachment could not be issued against him as be had not executed any surety bond. The objections were found to be without merit by the Executing Court, which disallowed the same vide order dated 7-7-1983, Noor Muhammad then filed a revision petition assailing the said order. The learned Additional District Judge, however, dismissed it on 3-5-1984 upholding the order of the Executing Court.Noor Muhammad pettioner then filed a Constitutional Petition against the order dated 7-7-1983 passed by the Executing Court as also the order of the learned Additional District Judge dated 23-5-1984 passed in the exercise of his revisions! jurisdiction whereby he had refused to interfere with order of the Executing Court . The prayer in the Constitutional peti tion reads as follows : "It is, therefore, respectfully prayed that aa appropriate writ may kindly be issued declaring the action of respondent No. 2 and 3 in issuing the warrant of attachment against the petitioner as illegal, without any jurisdiction. It is further prayed that an appropriate writ may kindly be issued declaring that the surety bond as sanctioned is fictitious and not enforceable against the petitioner and the respondent is not entitled to receive the decretai amount from the petitioner against that surety bond. It is further prayed that the petitioner may kindly be allowed any other relief to which he is found entitled to at the time of deciding the title writ petition." The High Court, however, dismissed the writ petition vide the impugned order. Feeling aggrieved Noor Muhammad has filed the present petition for leave to appeal against dismissal of Constitution petition. 5. We have heard the learned counsel for the petitioner at some length and also have gone through the impugned order. As is evident from the facts recorded in paragraph No. 2 as also from the prayer in the Constitutional Petition filed by the petitioner that it was directed mainly against the orders of the learned Civil Judge dis missing the objection application filed by the petitioner in the execution proceedings, which was upheld by the learned Additional District Judge by his order dated 3-5-1983, dismissing petitioner's civil revision. During the course of the arguments the learned counsel for the petitioner conceded that the Executing Court had the jurisdiction to pass the order dated 7-7-1983 disallowing petitioner's objections and that a civil revision is provided by law against such an order before the District Judge/Additional District Judge. It is, therefore, evident that the Constitutional Petition Sled by Noor Muhammad petitioner was not competent because neither the impugned orders passed by the learned Executing Court nor that passed by the learned Additional District Judge in exercise of his revisional jurisdiction, can, by any stretch of imagination be said to be 'illegal' or to have been passed "without lawful authority". The petition is therefore dismissed with costs, as being frivolous. a 6. Before parting with the case we may observe that there Is an iucrea-j sing tendency to file Constitutional petitions even when the courts whose orders are challenged had the jurisdiction to pass those orders, notwith standing the fact that it has been held time and again that where a court (in contra distinction to a persona designata) has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal. Refer Badru Haque Khan v. The Election Tribunal, Dacca and others (PLD 1963 S.C. 704) ; Muhammad Hussain Mumr and others v Sikandar and others (PLJ 1974 S.C 60) ; and Abdul RehmanBajwa v. Sultan and 9 others (PLJ 1981 S.C. 895). We are of the view that the tendency to file such constitutional peti-J tions tends to clog the superior courts with frivolous litigation and causesL, unnecessary delays in the disposal of other cases and this tendency should} therefore be curbed with a strong hand. (TQM) Petition dismissed.
PLJ 1985 SC 93 [Appellate Jurisdiction] PLJ 1985 SC 93 [Appellate Jurisdiction] Present : aslam riaz hussain, shafiur rahman & mian burhanuddin khan, JJ NADEEM AHMAD-Appellant versus PRINCIPAL/CHAIRMAN ADMISSION BOARD, King Edwards Medical College , Lahore Respondent Civil Appeal No. 79 (also No. 80) of 1984, decided on 16-8-1984. Constitution of Pakistan, 1973
Arts. 185 & 199 and Provisional Constitution Order (CMLA's 1 of 1981;Art. 9Suppression of facts Effect of Persons coming with unclean handsWrit petitions filed byDismissal ofSuppres sion of facts made by appellants in their affidavits filed before Board of Intermediate and Secondary Education as well as those filed for admission in Medical CollegeHeld : Courts having always refrain ed from issuing writs in favour of parsons not coming with clean hands, High Court to be justified in dismissing writ petition as well as I.C.A's filed by appellants. [P. 95]A PLJ 1982 SC 264 & 1983 SCMR 196 ref. Mr. Aitzaz Ahsan, Advocate Supreme Court with Mr. Mahmud A. Qureshi, Advocate-on-Record for Appellants. Mr. Tanvir Ahmad Khan, A. A. G. ( Punjab ) with Rao Muhammad Yousaf Khan, Advocate-oo-Record for Respondent. Date of hearing : 16-8-1984. judgment Aslam Biaz Hussain, J.This judgment shall dispose of Civil Appeal No. 79/84 filed by Nadeem and Civil Appeal No. 80/84 filed by his brother Naeem Ahmad. 2. The facts, briefly, are that two brothers (Nadeem Ahmad and Naeem Ahmad appellants) appeared in the Intermediate Examination in 1978 (Spring) from the Board of Intermediate & Secondary Education, Sargodha , and were declared successful. They secured 477 and 468 arks respectively. Thereafter, both of them appeared in 1979 (Spring) examina tion held by Rawalpindi Board under Roil Nos. 5733 aud 3734 respec tively, as a fresh candidates, though they were not eligible as such. Both of them in their permission forms of the examination of the Board of Intermediate & Secondary Education, Rawalpindi, did not disclose that they had already passed the F. Sc. Examination earlier from the Sargodba Board, though Column No. 7 of the said form placed a duty upon them to mention the same. Both the applicants succeeded only in three papers and the remaining papers were declared by them through a further attempt in 1980 (Autumn) Examination from the same Board /. e. Rawalpindi Board. They then applied for admission to the first year in the M. B. B. S. in the King Edward Medical College, Lahore, for the Session 1981-82. Their applications for admission were accompanied by usual affidavits relating, inter alia, to the number of attempts made by them in passing the F. Sc. Examination. They were thereupon given provisional admission to the first year in the said College. 3. Board of intermediate and Secondary Education, Rawalpindi , however, issued notices to both of them on 9-8-1980 and 16-1-1981. The first notice was regarding the use of unfair means in the examination and the second notice was with respect to the concealment in their permission forms for the Intermediate Examination held in 1979 by the Rawalpindi Board, wherein they did not disclose that they had already appeared and passed the F. Sc. Examination from the Sargodoa Board. The appellants challenged these notices before the civil courts at Gujrat and got ex parts decree in their favour from the trial court at Gujrat and the appeals of the Rawalpindi Board were dismissed on ground that the court fee worth Rs. I/- had been paid on the copy of the impugned decree instead of Rs. 2J-. These decisions of the appellate court were challenged through revision petitions before the Lahore High Court at La'iore where the peti tions have been admitted to regular hearing and notices have been issued to the present appellants. The Principal, King Edward Medical College, Lahore, also cancelled their provisional admissions, vide order dated 30 3-1983, on the ground that in their affidavits they had not mentioned the correct number of attempts made by them in passing the F. Sc. Examination, inasmuch as they had not disclosed the attempts made by them in 1979 (Spring) Examination. Another ground of cancellation of their provisional admissions was that they were not entitled to as fresh candidates in the 1979 (Spring) Examination from Rawalpindi Board, as they had already passed the Intermediate Examination from the Sargodba Board in 1978, 196). In this case, too, it was found that the student had filed a false affidavit and it was held that his writ petition ought to have been dismis sed by the High Cuurt. The above-mentioned observations in the case of Muhammad Asfaraf Qadri were relied upon and it was further observed that the respondent (student) bad, "through misrepresentation and with intent to make wrongful gain of a particular type laid basis for defrauding authorities concerned if and when a chance arose". In view of the above discussion we find no merit in the two appeals which are consequently dismissed, (TQM) Appeals dismissed.
PLJ 1985 SC 96 [Appellate Jurisdiction] PLJ 1985 SC 96 [Appellate Jurisdiction] Present : aslam riaz hussain ; shafiur rahman M S.H. quraishs & mian burhanuddin khan, JJ MUHAMMAD ABDULLAH-Appeliant versus DEPUTY SETTLEMENT COMMISSIONER, Central Lahore Respondent Civil Appeal No, 18 of 1983, decided on 16-10-1984. (i) Law Reforms Ordinance (XII of 1972)
S. 3 (2) read with Constitution of Pakistan , 1973-Arts. 185 & 199 Intra Court AppsalCompstency of Appeal cleariy provided against original order (dated 21-9-1970) passed by Deputy Settlement Commissioner -Held : Intra Court Aaps.il (against judgment of High Court dismissing writ petition) not to be competent [P. ]A (ii) Constitution of Pakistan , 1973
Arts. 185 & 199See : Law Reforms Ordinance (XII of 1972) S. 3 (2). [P. n]A Mr. Zafar Pasha Chcudhry, Advocate Supreme Court for Appellant. Ch. Mnhammad Bakhsh, Advocate Supreme Court with Rana M. A, Kadri, Advocate-on-Record for Respondents. Date of hearing : 16-10-1984. judgment Aslam Riaz Hassain, J.This appeal, by leave of this Court is directed against the judgment of a Division Bench parsed by the Lahore High Court, dated 25-3-1976, whereby Letters Patent Appeal of the appellant was dismissed. The said appeal was dismissed on the ground that it was not compe tent as it was bit by a proviso to section 3 of the Law Reforms Ordinance, 1972. Sub-section (2) of Section 3 whereof is in the following term :-» "(2) An appeal shall also lie to a Bench of two Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of rticle 199 of the Constitution of the Islamic Re public of Pakistan not being an order made under sub-para graph (i) of paragraph (b) of that clause.Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order". 2. In this case, an order was passed by the Deputy Settlement Com missioner on 21-9-1970, in favour of the appellant whereby the plot in question which is alleged by the other side to be a part of the main house, was auctioned in his favour. That order was subject to a revision, which as isposed of by the learned Settlement Commissioner on 30-101971, who set aside the said order and remanded the case to the Deputy Settle ment Commissioner. The Deputy Settlement Commissioner disposed of the case, remanded to him, by the order dated 12-6-1975. The appellant filed a writ petition against the said order, but the same was dismissed on 30-5-1975 by a learned Single Judge of the Lahore High Court. The appellant then filed an Intra Court Appeal to challenge correctness of the said order. But the Division Bench dismissed it, on the ground that in view of the proviso to sub-section (2) of Section 3 of the Law Reforms Ordinance, 1972, an Intra Court Appeal against the order of a learned Single Judge passed under Article 199 of the Constitution, was not avail able in this case because the original order of the Deputy Settlement Com missioner was subject to a revision. 3. tThe contention raised by the appellant before us is that the learned Judges hearing the Intra Court Appeal overlooked the circumstances that in pursuance of the order of the remand, the Deputy Settlement Commissioner actually took up the case sometime in 1975. By then, the Evacuee Pro perty and Displaced Persons Laws (Repeal) Act (No. XIV), 1975 had been promulgated, whereby the Displaced Persons (Compensation & Rehabili tation) Act, 1958, had been repealed. Upon the repeal of the aforesaid Act all the proceedings which immediately before the repeal were pending before the authorities appointed thereunder, were to stand transferred for final disposal to an officer to be notified by the Provincial Government in the official gazette for disposal in accordance with the provisions of the repealed Act. Under the new law no further appeal, revision or review was available against the orders of such a notified officer. 4. The learned counsel argued that after the repeal, the fresh order passed by the Deputy Settlement Commissioner on 12-6-1975, ought to have been treated as the original order and since the law now applicable did not provide any revision or review against that order (which was challenged by the appellant through a writ petition), the Intra Court Appeal filed by him was not hit by the proviso to sub-section (2) of Sec tion 3 of the Act. 5. The above contention, however, can no longer be accepted, because a similar question has been elaborately examined by this Court,recently in a Settiement case, namely Mst. Karim Bibi i. Hussaio Bakbsh & others (P.LJ. 1984 SC 326) and it was held that the meaning of the expression 'original order' is the order with which the proceedings under the relevant statute commenced. It was observed that : "The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicab.e is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings was subject to an appeal under the relevant law". The conclusion was expressed thus : "Apparently the meaning of the expression "original" order" is the order with which the proceedings under the relevant statute commenced." id view of this clear enunciation of the law, the "original order" in the present case was clearly the order of the Deputy Settiement Commis sioner dated 21-9-1970. As such the view expressed by the learned Judges 4 of the High Court in the impugned judgment that an Intra Court Appeal was not competent, because the law provided for an appeal against th& original order dated 21-9-1970 is unexceptionable. The result is that this Appeal must fail and is accordingly dismissed hereby, leaving the parties to bear their own costs. AtPp. 331-32. (TQM) Appeal dismissed.
PLJ 1985 SC 104 PLJ 1985 SC 104 [Appellate Jurisdiction] Present : muhammad haleem, CJ ; aslam riaz hussain, dr. nasim hasan shah, zaffar hussain mirza & M S.H. quraishi, JJ GULZAR HUSSAIN-Appellant versus ABDUR REHMAN and AnotherRespondent Civil Appeal No. 327 of 1983, decided on 30-10-1984. (i) Constitution of Pakistan , 1973 Art. 185 read with Civil Procedure Code(V of 1908)S. 115 & Court Fees Act (VII of 1870)S. 9Suit Undervaluation of Enquiry into-Respondents though admittedly in possession of land, material relating to net profits of previous year not brought on recordNo reasonable grounds furnished to Court in terms of opening part of S 9 to order enquiry suo motu Respondents, however, complaining before High Court regarding failure of trial court in its duty to enquire in mater on its ownHeld : High Court proceeded on in correct assumption in holding that trial court in circumstances to be under obligation to undertake enquiry itself. [P. 109]£> (ii) Court-Fees Act (VII of 1870) S. 9Net profiis or market value Ascertainment of Court Enquiry byHeld : Enquiry to ascertain net profits to be necessary only in case of court having reason to believe that estimate given in plaint to be wrongCourt in such case to legally make refer ence to chart, Gazetteer or any other thing assisting in matter Court wanting matter to be further enquired intoHeld : Evidence of external facts becoming plainly necessary, court to undertake in vestigation in judicial manner. [P. 108]^ (iii) Court-Fees Act (VII of 1870)
Enquiry byCommissionIssuance of Court issuing commission to proper person for investigationHeld: Court to come to decision as basis of Commissioner's report in accordance with provisions of Code of Civil Procedure (V of 1908). [P. 108]fl (iv) Court-Fees Act (VII of 1870)
S. 9Net profits or market value Ascertainment ofCourt Enquiry byHeld : Investigation contemplated by S. 9 not to be embarked upon without due reason (as otherwise even on frivolous objection plaintiff to suffer hardship of going through extra stage of litigation before prosecuting his suit). [P, 108]C (v) Court-Fees Act (VII of 1870)
S. 9Net profitsAscertainment ofCourtEnquiry byHeld : For purposes of preliminary satisfaction of court whether thcrs existed reasonable grounds for enquiry, court to look into any document without its being proved Proof of enacument, however, to become necessary in case of court embarking upon enquiry contem» plated by S. 9 of Act. [P, 109]£ (vi) Evidence Act (I of 1872)-
S. 67DocumentProof ofMode ofFailure to object Effect ofDocument exhibited and referred to without any objection as to manner of proof at relevant timeHeld : No such objection to be allowed to be raised in appeal or revision. fP. 109J F PI D 1968 SC 140 ; AIR 1943 PC 83 ; PLD 1969 SC i36 ; PU 1984 SC 455 & 1983 SCMR 849 ref. (vii) Document
Formal proof ofObjection as to Failure to raise at proper timeEffect of Objection as to mode of proof of document not raised at earlier stageHeld : Respondents to be debarred from raising question of formal proof of document at subsequent stage, [P. \Q9]G (viil). Court-Fees Act (VII of 18701
S. 9-See : Constitution of Pakistan, 1973Art, 185 [P, 109j/> Malik Muhammad Qayyum, Advocate Supreme Court, instructed by Mr, Walayat Umar Ckoudhry, Advaca-te-on-Record for Appeiiant. Ch. Muhammad Arif, Senior Advocate Supreme Court, instructed by Mr, Aziz Ahmad Khan, Advocate-on-Record for Respondents. Date of hearing : 30-1C-1984. judgment Zaffar Hussaio Mirza, J. This appeal by special leave arises out of judgment dated 16-4-S983 by a learned Judge of the Lahore High Court, Lahore, in revisional jurisdiction whereby he sat aside the judgments and decrees of the Courts below and remanded the case to the trial Court for decision of the issue relatiog to the valuation of the suit for purposes of Court Fees and jurisdiction, 2. The facts forming the background of this appeal are that laud measuring 20 kanals 19 marias situated in Mauza Macchraia, Tehsil and Dis trict Gujranwaia was sold by one Nazar Muhammad to respondents Abdur Rehman and Muhammad Yamin on 15-5-1973 by means of mutation No. 189 for Rs. 12.500/-. The appellant thereupon, claiming superior right of pre-emption as against the respondents (vendees) on the basis of his co-ownership in the holding brought a suit for pre-emption. Jn the plaint the appellant valued the suit for puposes of Court Fees at fifteen times the yearly net profits of Rs 274 12 having arisen from the land during the year next before the date of presenting the plaint. The respondents disputed the valuation of the suit and pleaded in their written statement that the appellant had deliberately undervalued the suit for purposes of Court Fees and therefore the suit was not entertamable. On the pleadings of the parties the trial Court framed severaj issues including issue No. 1 which related to the valuation of the suit for purposes of Court Fees and jurisdic tion The appellant in support of his case produced his evidence on 17-11-1975 and seem? to have closed his side. However, on 18-9-1977 the appellant moved the trial Court for permission to produce documentary evidence consisting of copy of mutation No. 189 dated 15-5-1973, copy of mutation No. 112 dated 23-12-,970 and "Farde Khalis Munafd". This application was resisted by the respondents but since they had not yet entered upon their defence and the Court was of the view that the documents were copies of official Revenue record and hence their genuineness being beyond question, the Court allowed the production of the documents by the order daied 15-3-1978. The statement of net profits was admitted in evidence and marked as Ex. P. 4. On the merits of the claim the trial Court found that the appellant had established his superior right to pre-emption on the basis of co-sharership. As to the first issue regarding the valuation for purposes of Court Fees, the Court observed that the respondents had not produced any evidence as to what was the proper valuation of the suit for purposes of Court Fees and hence even excluding Ex. P. 4, the Court held in favour of the appellant on the first issue. In view of these findings the Senior Civil Judge, Gujranwala, decreed the suit of the appellant on 24 4-1980. In appeal the respondents only challenged the finding recorded by the trial Court on issue No. 1 on the ground that Ex. P. 4 (statement of net profits) was not admissible in evidence as it had not been properly proved according to law. The learnd Additional District Judge, Gujrawala, before whom the appeal came up for disposal rejected the contention of the respondents and observed : "Admittedly no objection was taken by the appellants at the time of production of net profits statement Ex P. 4 in the evidence by the respondent. Even : a suggestion was not given in this respect on behalf of the appellants to the respondent when he appeared as PW I. The appellants were only to prove that in case the suit was not correctly valued for the purposes of court-fee and jurisdiction then what was the correct valuation for both these purposes. In rebuttal the appellants examined Abdul Vakil DW 1 and Abdul Waheed DW 2. Yamin one of the appellants also appeared as his own witness as DW 3. None of these witnesses said a single word about the fact if the suit was not correctly valued for the purposes of court-fee and jurisdiction or that what should have been the correct valuation The respondent had already paid court-fee on his plaint according to the net profits statement Ex. P. 4. and in these circumstances the learned trial Court has rightly decided issue No. 1, in favour of the respondent. If it be assumed that the document Ex. P. 4, should not be taken into consideration, even then there is nothing on the file on behalf of the appellants to show as to what is the correct valuation of the suit for the purposes of court-fee and jurisdiction. No other point was urged on behalf of the appellants." The appeal of the respondents was accordingly dismissed on 25-5-1982. 3. The respondents then went up before the High Court in revision and a learned Judge of the High Court by the impugned judgment accepted the revision of the respondents and set aside the judgments and decrees of ^ the Courts below as stated above, remanding the case to the trial Court " for a fresh decision on issue No. 1 in accordance with law. The High Court held that the Courts below had acted on the assumption that the onus to prove the issue was on the respondents ; however, the High Court was of the view that this assumption was based on a mjsconception of the true legal position because "the Court is itself obliged to make an enquiry and after judicious application of the mind to decide the question. The appellate Court failed to take a correct view of the matter because it observed that even if Ex. P. 4 was to be ignored from consideration, there was no evidence brought on the record by the defendant to enable the Court to record findings otherwise." 4. Leave was granted in order to consider the contention raised on behalf of the appellant "that it was not necessary to proceed to the alterna tive ground (of there being no evidence on record) because in fact Ex. P. 4 ^ (the statement of net profit) was admissible in evidence, even without its having been formally proved by producing its author in evidence." 5. On a careful reading of the impugned judgment we find that the learned Judge in the High Court was persuaded to interfere in the revisional jurisdiction of the High Court to upset the decision of the Courts below on the question of valuation for purposes of Court Fees on the pro position that it was the duty and the obligation of the Court itself to deter mine the correct valuation of the suit and hence even if none of the parties brought any evidence on record in this behalf, the Court had itself to make an enquiry and determine the question In taking this view the learned Judge relied on a judgment of this Court in Allah Yar v. Muhammad Riaz (PLJ 1982 S.C. 210). In this case no doubt this Court observed : "The ere fact that at the trial the defendant had not pressed the question of deficiency in the Court fee does not relieve the court of the obligation of ooking into the matter, determining the correct amount of Court-fee and seeing that the deficiency is made up." But this observation was made in the context of the peculiar facts of that case. These facts were that the plaintiff had undervalued his suit for pre-emption and the plaint was insufficiently stamped. An objection was taken at the instance of the learned Civil Judge by the office, whereupon an order was passed by the Court directing the plaintiff to make up the deficiency in the Court-Fee on the basis of fifteen times of the preceding year's net profit within a specifid time. As the plaintiff did not comply by remaining absent his suit was dismissed. On appeal the case was remanded to the trial.Court for a fresh decision of the matter in accordance with the Order VII rule li (b) of the Code of Civil Procedure. At this stage the plaintiff obtained "Naqsha Jhar Paidawar'" from the Revenue authorities, and placed it on according to which the previous year's net profit was calculated as Rs. 1.882/-. As the defendant did not press this issue, the trial Court decreed the suit and this decree was upheld in appeal by the District Judge. Eventually the defendant came up before the High Court in revision which was accepted and the decree was set aside. The plaintiff then came up before this Court but his petition was dismissed, mainly on the ground that in the circumstances of the case be was not entitled to exten- ,, sion of time for payment of deficit Court-Fee under Section 149 of the Code of Civil Procedure, as having himself placed on record the document of net profits, according to which he had to pay Court-Fees on an amount of Rs. 28, 231,80 and not on Rs. I200/- as paid by him, his conduct was clearly contumacious. It was io this context that the aforementioned obser vation was made by the Court. 6, We may in this connection refer to Section 9 of the Court-Fees Act, 1870 which is in the following terms : "9. Power to ascertain nett profits or market va!ue.If the Court sees reason to think that the annual nett profits or the market value of any such land, house or garden as is mentioned in section 7, paragraphs (v) and (vi), have or has been wrongly estimated, the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other investiga tion as may be necessary, and to report thereon to the Court." It will be seen that Section 9 begins with the words, "If the Court sees reason to think that the annual nett profits or the market value of any uch land, etc., have been wrongly estimated." An enquiry to ascertain he net profits would" therefore, be necessary only in case where the Court has reason to believe that the estimate given in the plaint by the plaintiff is wrong. For the purpose of these opening words, therefore, there is no illegality in the Court making reference to a chart or to a Gazetteer or to any thing else that will assist. This is not a question of judicial decision. The Court merely for its satisfaction whether it will be reasonable to question the valuation made by the plaintiff makes reference to such material and that by itself will hurt nobody. However, f the Court wants this matter to be further enquired into and it is a matter jpon which evidence of external facts becomes plainly necessary, the Court must undertake investigation in a judicial manner. The Section lays down chis manner and directs that Commission be issued to a proper person for ,uch investigation. In that case if a report is made by a Commissioner, hen it will be the judicial duty of the Court to com; to a decision on the lasis of the Commissioner's report in accordance with the provisions of the Code of Civil Procedure, Taking into consideration these provisions it Becomes clear that the investigation contemplated by Section 9 should not ?e embarked upon without due reason, as otherwise even on a frivolous abjection the plaintiff will have to suffer the hardship of going through an ;xtra stage of litigation before he can prosecute his suit. 7. Now if the proper scope of Section 9 of the Court-Fees Act is kepi in mind, the observation of this Court in Allahyar's case becomes clear and relevant because in that case the Court had reason to believe, in view of the document of net profits placed on record by the plaintiff himself that the suit was under-valued. The Court had even otherwise come to the conclusion that the suit was under-valued and called upon the plaintiff to make up the deficiency. As the question as to the amount of Court Fees payable is not a question between the parties but a matter between the plaintiff and the State, the fact whether the defendant pressed this issue at the trial or not, was considered immaterial. 8. The facts of the reported case are, therefore, entirely distinguish able from the facts of the present case. There is nothing on the record might not have been forthcoming bad it been insisted on at the trial." On the basis of this rule this Court observed : "The record in the present case does not also disclose that any objection was taken by the pre-emptors to the proof of this document when it was produced in Court by the counsel for the vendees and marked as an exhibit. The document not having been objected to must be deemed to have been admittsd and, as such, the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. The document having been marked as an exhibit without objection became admissible in evidence and was rigntly taken into consi deration by the High Court. There can be no doubt as to the genuineness" or adraissibility of this document, for, it is not disputed that it forms part of the mutation record, and, indeed. was one of the documents upon which the mutation of sale was actually entered." Similarly in Malik Din and another v. Mohammad Asiam (PLD 1969 S.C. 163) this Court reiteraied the view and held that objection as to formality of proof must be taken at an earlier stage, and ones the docum-nt is admitted in evidence such objection against admission cannot be allowed at appellate stage. This view has been followed in som; recent decisions of this Court, namely, Dr. Major Abdul Abad Khan v. Soofi Muhammad Yasin and Brothers (PLJ 1984 S.C. 4^5} and Ghulam Muhammad and others v. Mehtab Beg (1983 S.C.M.R. 849). 12. It has been observed, however, in the leave granting order that the counsel had referred to Khan Muhammad YuMif Khan Khattak v. S M. Ayub and two others (PLD 1973 S.C. 160) in which a contrary view was taken in the majority opinion expressed therein. A careful reading of this judgment, however, reveals that the view expressed in the earlier judgments of this Court referred to above was not dissented from Humjodur Rehman, C. L, who wrote the minority opinion in this case followed his earlier view in the 1968 and 1969 cases mentioned above. Out of the remaining two learned Judges constituting the majority in this case Anwarul Haq, J., (as he then was) observed as follows : "While it is true, as observed by the Privy Council in Gopal Das v. Sri Thakurji and by this Court in Abdullah v. Abdul Karim and Malik Din r. Muhammad Aslarn, that an objection as to the mode of proof should be taken at the trial before the document is marked as an exhibit and admitted to the record and a party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof, it will be seen that in this case an objection as to the admissibility and the proof of this document was taken before the Election Tribunal itself. A cursory glance at the original of this document, which was summoned by this Court, shows that there is an overwriting on the signatures of the appellant. It is recorded by the Election Tribunal that the original, as produced by the Registration Assistant, was seen and returned. I cannot help feeling that the Tribunal clearly failed to perfrom its duty if it did not see the overwriting on the original of Exb. P. E." So far as the rule of law with regard to objection as to the formality of proof of a document is concerned, therefore, the majority did not dissent from the earlier view postulated. The reading of this judgment indicates that the decision of the Court turned on the peculiar facts of this case, as the document involved was a private document in which admissions made by a party on a matter in issue were being relied upon, without confronting the party'concerned with the document. We have, therefore, come to the conclusion that the consistent view of this Court is as explained in the case referred to above. 13 Coming now to the facts of this case the document in question was apparently a certified copy of the Revenue Record which was produced in the trial Court on an express permission obtained by the appellant. It is no doubt true the respondents objected to the application of the appellant to produce further evidence after having closed his evidence earlier But the Court allowed the request of the appellant ana permitted him to adduce additional evidence consisting of documents including Ex P 4. There is nothing on the record to indicate as to whether the respondents objected to the mode of proof in respect of this document a this stage. Objecting to a further opportunity being provided to the plaintiff to produce additional evidence is quite different from objecting to the admissibility of the document on the ground of mode of proof. It was areued on behalf of the respondents that there was no order of the Court that the document be exhibited. We are, however, unable to verify the correctness of this statement from the present record. However, there is on record the statement of the Advocate producing these documents and an exhibit number has been assigned to the document in question. La the judgments of the Courts below also the document has been referred to as Ex P 4 and there is nothing on the record to indicate as to whether the respondents raised this objection that the document was not exhibited by the Court, at any earlier stage. The rule of law laid down by this Court, therefore, 'was fully attracted in this case and the respondents are debarred from raising the question of the formal proof of this document at subsequent stage. No other contention was raised on behalf of the respondents. 14 For the foregoing reasons this appeal is allowed with costs andthe order of the High Court dated 16-4-1983 is set aside with the reult that the decree passed in favour of the appellant shall stand restored. Appeal allowed.
PLJ 1985 SC 111 PLJ 1985 SC 111 [Appellate Jurisdiction] Present : asi,am rsaz hussain, shafiur rahman, M.S.H. quraishi & mian burhanuddin khan, JJ DEPUTY INSPECTOR GENERAL OF POLICE, Lahore etc. -Appellants versus ANISUR RAHMAN KHAN- Respondent Civil Appeal No. 318 (also No. 319) of 1981, heard on 17-10-1984. (i) Constitution of Pakistan, 1973 __ Art 212 read with Punjab Service Tribunal Act (IX of 1974) S. 4 -Competent authority Orders ofService Tribunal-Interference byNo iegal defect in proceedings adopted by competen; authority Held: Interference by Tribunal in order passed being not called for orders of competent authority to be restoied. [P. 122]7 (ii) Constitution of Pakistan, 1973 Art, 212 read with Punjab Service Tribunals Act (IX of 1974) S. 4 & Punjab Police (Efficiency & Discipline) Rules, 1975-R, 6 Malversation and misconductCharges ofDepartmental enquiry Requirement ofService Tribunal assuming charges of malversation and misconduct being co-extensive and inter-connected, judicial (rial to be proper alternative and once resorted same to serve as substi tute for departmental inquiryHeld : Charges of malversation and misconduct having nothing directly to do with criminal charge an<:? same, on other hand, being charges relatable to functionary and service discipline within which appellant works, Tribunal to be clearly in error in such assumption. [P, 118]C (Hi) Punjab Service Tribunals Act (IX of 1974)
S. 4 read with Constitution of Pakistan, 1973Art. 212Dismissal from serviceAppeal against Criminal caseJudgment inRele vancy of-Held : Opinions or findings recorded or expressed in judg ment of trial court, apart from fact of such order being that of con viction or honourable or otherwise acquittal, not to be utilized for unsettling other proceedings. [P. 120]F (Iv) Punjab Police (Efficiency & Discipline) Rules, 1975 R. 6 (3) (&)Departmental inquiryNature ofRelevant factors for Held : Nature of allegation, time occasion, place and presence or absence of superior etc. being (only) relevant, good record, press reports and quality of service rendered by official t > be no criteria for determining question of holding inquiry after appointing inquiry officer or by issuing show-cause notice straight awayHeld further ; Competent authority being best judge of it, no exhaustive or enuraerative description of all facts and circumstances to be provided; [P, \2}G (v) Punjab Police (Efficiency & Discipline) Rales, 1975 R. 6 (3) (i) Departmental inquiry through inquiry officer Necessity ofDecisions regarding Discretion conferred on com petent authority to decide whether departmental enquiry through Inquiry Officer to be necessary Held : Exercise of such discretion though not controlled by any pre-requisite or guidelines, same should appear from record to have been resorted to fairly and justly and not oppresively and perversely. [P.I 19]D (vi) Punjab Police (Efficiency & Discipline) Rules, 1975 R. 6 (3) (/)Departmental inquiry Show-cause procedureRe sort to without appointing Inquiry Officer Effect of Superior Officer of appellants, having authority to control and superwise functionary of his subordinates conducting, raid in company of an other functionary of Martial Law Headquarters Result of raid even accepted bv appellants themselves Held : Resort to showcause procedure without appointing any Inquiry Officer on no principle to be objected to as abuse of discretion or unjustified in law. fP, i!9]E fvji) Civil Services- Departmental enquiry judicial verdict in criminal case Relevancy of Held : Scope and law applicable to criminal trial being different from that applicable to departmental inquiry and charges in two being also not identical or substantially same in case competent authority not lo be duty bound under any provision or principle of law to await and follow judicial verdict in case fP. 123}H (viii) Words and Phrases -- "Cumipt"- Meaning of. [P. 117] Concise Oxford Dictionary rcf. (isf! Words & Phrases- -"Malversation" Meaning of, |'P. llllA fx) Constitution of Pakistan, 1973 -- Art. 212 - See : Punjab Service Tribunals Act (IX of 1974) 8, 4 [P. 1201F (xi) Punjab Service Tribunals Act (IX of 1974}- -- S. 4 See ; Constitution of Pakistan , 1973 Art. 212. [Pp, 118 Jt 1221C& J (xli) Paujah Police i Efficiency & Discipline) Rules, 1975 ---- R. 6 See : Constitution of Pakistan , 1973 An. 212, [P. 118]C Mr. Khali! Ramday, Add!. A G, Punjab assisted by Mr. M.M. Saeed Beg, Advocate Supreme Court and instructed by Sh. lia: Ail, Advocateon-Record (absent) for Appellants. Raja M. Anwar, Senior Advocate Supreme Court for Respondent (in C.A. No, 318,1931), Mr, A, Rashid Qureshi, Advocate Supreme Court instructed by Mr. 5. Inayat Husain, Advocate-on-Record for Respondent (in C, A. No, .119.' 1981). Date of hearing : 17-10-S984. judgment Sbafiur-Rahman. J. --Leave to appeal was granted to the two upper subordinates of the Police force to examine, inter a-sa. whether it was incumbent upon the competent authority to necessarily wast for the result of the judicial trial, or in any case to adopt the more elaborate procedure of inquiry, for coming to a positive conclusion with regard to their inno cence or guilt. In the early u-.;n ? of the 27th of June, 1980 (3. 5U a.m.) under the orders of S P., Lahore , Mehr Muhammad Nawaz, DSP, Old Anarkali, alongwith Major Masood-ul-Hassan and Naib Subedar Inayat of the Martial Law Headquarters raided the residential room of S H O. Mozang on the upper-storey of the police station building. They found a lady Mst. Aisha sitting on the bed on which Inspector Anis-ur-Rehman was lying and she was pressing his feet. On interrogation, she informed that she had been picked up at 10.40 a.m. on 26-6-1980 from Rewaz Garden area and taken in the police jeep to various places and had been kept at the police station. She was threatened and abused by Anisur Rahman, Inspec tor and Muhammad Ashraf,/Asstt. Sub-Inspector, the appellants. On her statement a case (F.I.R. No. 376) under sections 342/354/376/511. P.P.C., was registered at the same police station. The criminal case proceeded to trial and statement of Mst. Aisha was recorded more than once under sections 161, Cr. P. C. and 164, Cr. P. C A Show Cause Notice issued to ASI Muhammad Ashraf and Inspector Anisur Rahman. The show-cause notice that issued to Inspector Anisur Rahman accused him of having committed acts of malversation and mis conduct with Mst. Aisha. He was required to submit his written defence within seven days of the receipt of notice as to why he should not be awarded any one of the major penalties given in rule 4 (b) of the Punjab Police (E & D) Rules, 1975 for mis-conduct on his part under rule 6 (3) (a) and (b) of the said rules. It was also made clear that in case his reply was not received within the specified period, it shall be presumed that he had no explanation to offer and ex-pane action will be taken against him. This notice was issued by the Deputy Inspector-General of Police and is dated 30-6-1980 and was served on the appellant same day. The Show Cause Notice to Ashraf ASI was issued by the Superinten dent of Police, Lahore, is dated 1-7-80, and contained the accusation that hethreatened and abused Mst. Aisha and got her escorted to the residential portion occupied by Anisur Rehman and that his actions amounted to mis conduct which had brought a bad name to the police department. Inspector Anis-ur-Rehman claims to have filed his reply to the Show Cause Notice on the 7th of July, i980 with Reader to Reserve Sub-Inspec tor of Police Lines on 5-M980. Its receipt is, however, entered on 9-7-80. I did not reach the competent authority in time and on the 9th of July, 1980 a dismissal order was passed against Anis-ur-Rehman. Muham,mad Ashraf submitted his reply to the S.P. which was consi dered and a dismissal order was passed against him after reverting him to his substantive rank of Head Constable. \ Both filed appeals, one before the Inspectar-General of Police and the other before the D. I. G. These are said to be still pending. The version of Anisur Rehman appellant appears in the memo, of his appeal to Inspector-General of Police in the following words :"That on the night of 26-6-1980 at about llpm. the appellant while on general patrolling in a jeep, he was stopped near the Rewaz Garden by a woman (later identified herself to be the one Aisha alias Ashi) and told the appellant that two boys standing beside her were molesting and she was being teased and dis graced by these boys. The appellant alongwith other police officials apprehended the sajd two boys and despatched (hem to about a firing incident in the Tollinton Market requiring him to reach there. At the Tollinton Market the Inspector got a tele phone message about forcible possession of the house of Mr, Muhammad Aslam, Lone, Deputy Secretary, and asking the former to reach there, At the house of Mr. Muhammad Aslam Lone, the Police party stayed from 12 night to 2 a.m. when after giving instructions to the ASI i/c PP Sanda, the Inspector directed the appellant and ASI Zuifiqar Ali to continue their patrolling and himself with other occupants of the jeep left the place. The appellant and ASI Zuifiqar Ali returned to the Police Station at 6-5 a.m. in the morning of 27-6-1980. It was at the Police Station that the appellantlearnt that case FIR No. 342/J54/ 506/376/51! fPC had been registered against the Inspector of Police in charge, the two Constables and the ppellant".' While their appeals were pending they approached the Punjab Service Tribunal. Their appeals were allowed. The orders of their dismissal were set aside. They were reinstated in service with full honours and with all the back benefits, effacing altogether the effect of the proceedings departmentally held against them. The learned Additional Advocate-General has taken us through the record and urged that the Tribunal has taken an incorrect view of the law applicable and has applied wrong principles of law in appraising the material on record. The following instances have been highlighted (1) The Tribunal wrongly assumed that the scope and object of the departmental inquiry was co-extensive with the criminal charge. For that reason the Tribunal held that acquittal on criminal charge long after the conclusion of depart mental proceedings affected the latter. (2) The competent Authorities committed an error of law or jurisdic tion or abused the discretion vesting in them in deciding to adoptthe summary procedure prescribed for departmental inquiries as against the more elaborate procedure. The opinion expressed in criminal judgment has been utilized in violation of provision of S, 40 to 43 of Evidence Act. (3) The past good record of service was not at al! a relevant consi deration for deciding whether a departmental enquiry should at all be held and if so of what sort. The teagfh of service and the nature and the quality of service rendered can be a factor in determining the sentence or punishment to be avarded but not in deciding what sort of inquiry shall be held and whether the delinquent was guilty or not ? (4) The laudatory reporting in the newspaper concurrently published when the police officer is posted there could be of no use and should not ever form the "oasis for judging quality of service rendered particularly of the police subordinates. It is not for the Press but for the superiors to adjudge the quality of service ren dered by a functionary of the Government. 'Mis-conduct' has been defined in clause (iii) of rule 2 of Punjab Police (Efficiency & Discipline) Rules, 1975 under which the appellants were pro ceeded against. It reads as follows : "(2) Definitions. In these Rules, unless the context otherwise requires : (/) ... ... ... ... (iii) "misconduct" means conduct prejudicial to good order or discipline in the Police Force, or contrary to Government Servants (Conduct) Rules or unbecoming of a Police Officer and a gentleman, any commission or omission which violates any of the provisions of law and rules regulating the function and duty of a Police Officer to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditionsof service of a Police Officer ; ) .- (v) ... These charges of malversation and mis-conduct have nothing directly to do with the criminal charge or with the consent or the willingness of the victim. It is a charge relatable to the functionary and the service discip line within which ha works. The Tribunal, it appears, with respect, was clearly in error in assuming that the two charges were co-extensive and inter-connected that the judicial trial was the proper alternative and once having been resorted to, the departmental inquiry should not have been held and the trial should have served as a substitute for departmental nquiry.Now taking an objective view what we find on the plain admission of these police officers themselves is that a person (Mst. Ashi) whose report was to be recorded or from whom inquiry had to be made as a suspect, was unlike the two boys from whom same exercise had got to be done, was kept in the jeep and taken from place to place while these police officers went on duty and returned at about 3 a.m. Neither as a complainant nor as a suspect this was the treatment that, according to the service discipiline, should have been meted out to her, particularly, a lady. Her removal to the residential room mistrusting all the subordinates present in the Police Station would itself reflect not so much on the pre caution that the appellants took but on the lack of discipline that existed in the police station. The Police Force on the Sub-continent has always received a dis'inct treatment in the matter of service discipline. For example, in the Govern ment of India Act, 1935, by its Section 243 a provision was made that rules could be framed in such a manner in respect of Police Force so as to deny them the protection afforded to other civil servants by Sections 240 and 241 thereof. During the past half a century or so distinct and sepa rate rules framed under a special statute have existed for enforcing and "A judgment of acquittal in a criminal case only decides that the accused had not been proved guilty of the offence with which he had been charged and to this extent only and no more it is to be taken as eorr.ct and conclusive in a subsequent civil suit between the parties, the opinion and conclusions expressed in the judgment being otherwise irrelevant and inadmissible in such proceedings". In the case before the Tribunal the judgment in the criminal case could be relevant only for ascertaining whether it was a judgment of con viction or acquittal and whether it was an honourable acquittal. The other opinions or findings, apart from these two, recorded or expressed in the judgment could not be utilised for unsettling the rther proceedings. The extent to which the Tribunal utilised the judgment would be apparent uot only fmm the passages re-produced from it but also the comments made on it. Ths para reproduced by the Tribunal from the judgment was as follows :- " the appellant produced an attested copy of judgment delivered by Mr. Muhammad Naeera Sicldiqui Magistrate First Class, Lahore, in the above entioned case which runs to 34 typed pages. This judgment was announced on 7-5-8! and we re produced the concluding para, for reference : 'The upshot of the above discussion is that prosecution has failed to prove its case against the accused persons beyond any reason able doubt, hence the accused namely Anisur Rehuian, Muhammad Ashraf and Ahmad Din are acquitied from this case. Placing reliance on 1978 P Cr. L-J-724 wherein it was held as under : "S. 164, First information and ail eye-witnesses giving contradic tory statements-witnesses sometimes supporting prosecution case sometimes turning hostile and palpably giving false evidence by denying their 164, Cr. P. C. statements, No corroborative piece of evidence or incriminating circumstances proving guilt of accus ed case against accused not proved. Accused acquitted". The comments made would appear from the following remarks "In the present case what we find is that there is before us a judgment of this case which runs into 34 typed pages which holds that the case against the appellant was a result of a sheer high handedness of Police against another Police Officer, In this judgment we also find that two independent witnesses namely Zafar Iqbal and Abdur Rehman did not appear before the Court. We also find that this Court had rejected the evidence of Major Masud.ul-Hasan and of the Naib Subedar as of no substance. It is not our function to make any comments upon a judgment of a Court of competent jurisdiction which is liable to be appealed against before the High Court, but we have no hesitation to hold that the same attains finality if not set aside by the Court of appeal which in this case would be the Lahore High Court". The extent to which the learned Tribunal was influenced by irrelevant considerations would appear from the following observations made by it in its judgment before even considering the merits of the appeal: The scope of and the law applicable to the criminal trial was different from that applicable to departmental inquiry. The charges in the two were not identical nor substantially the same. The competent authority was not therefore dutv bound under any provision or principle of law t" await and follow the judicial verdict in trie case. As regards the nature of the relief granted by the Tribunal, we find that the Tribunal alone had access to the judgment if the criminal courts, as the judgment was pronounced long after the close of the departmental inquiry, while the appeal was pending in the Tribunal. It aiso had access to the record in the light of which it made The following observa tions "If this material which now has been looked at by us had beer, taken into consideration by the competent authority then he would have certainly arrived at the conclusion that a regular inquiry in this case was called for as envisaged, under rule 6(4} of the Punjab Police E & D Rules". On this conclusion, it appears to us that a direction should have issued to the competent authority to get an inquiry held by appointing aa Inquiry Officer rather (ban that the appellants should have been reinstated in service from the date of suspension in office with all back benefits as if they had not been removed from service at all.We find that there is no legal defect in the proceedings adopted by the .competent authority. The interference by the Tribunal in the order passedJwas not called for. The appeals are accepted nd he judgment of the /Tribunal is set aside restoring the orders of the competent authority passed (which were the subject matter of the two appeals, (TQM) Appeals accepted.
PLJ 1985 SC 124 PLJ 1985 SC 124 [Appellate Jurisdiction] Present : muhammad haleem, CJ ; aslam riaz hussain, nasim hasan shah & shafior rahman, JJ C/;. MUHAMMAD NASEERPetitioner versus SHO, POLICE STATION OLD ANARKALi, Lahore etc.Respondents Cr. P.S.L.A. No. 328 of 1984, decided on 24-11-194. (i) Criminal Procedure Code (V of 1898)
S. 154 read with Provisional Constitution Order (CMLA's 3 of 1981)Art. 9 & Constitution of Pakistan . 1973Art. 185FIR Recording of Challenge toSHO, while recording and sending statement of injured to Police Station for registration of case in exercise of powers under Cr. P, C., obviously performing functions in connection with affairs of Provincial GovernmentHeld : FIR in question not to be illegal or without authority "Held further : Question of intormation given being first in point of time or otherwise being matter squarely falling for determination of trial court, same not to be dealt with (by High Court) while exercising writ jurisdiction. [P. 126] A (ii) Constitution of Pakistan , 1973
Art. 185See : Criminal Procedure Code (V of 1898) S. 154. [P. 125W (iii) Provisional Constitution Order (CMLA's 1 of 1981)-
Art. 9See : Criminal Procedure Code (V of 1898) --- S, 154. Mr. Shaukat AH, Advocate Supreme Court instructed by Mr. Ghuiam Mujtaba, Advocate-on-Record for Petitioner. Date of hearing : 24-11-1984. order Aslam Riaz Hussaits. J.Tfais petition by MuhammaJ Naseer is directed against the order of a learned Single Judge of the Lahore High Court dated 2-SO-1S84, dismissing his writ petition in a criminal case. 2. The facts forming the background of this petition are briefly, that on 6-2-1984, firing took place in the verandah of the Lahore High Court, Lahore, as a result of which one person namely Akhtar Mahmood died and another Shakil Asghar got injured. The latter was removed to the Mayo Hospital, Lahore. On receiving information S. H. O. Police Station Old Anarkali, Lahore also reached the Mayo H
spital and recorded the statement of Shakil Asghar in the Emergency Ward. The formal FfR was recorded at the above named Police Station on the basis of this statement. The Police then investigated the matter on the basis of the FIR, challaned the accused and sent them up to stand their trial. 2-A. It, however, transpired that prior to the registration of the abovementioned FIR on the basis of the statement of Shakil Asghar, a report (No .7) was also registered in the Daily Diary maintained at the High Court Police Guard Room, at 11.30 a m , and one of the accused-person responsible for the firing was also caught at the spot and handed over to the Police. The contents of the report however do not disclose the incident in its entirely or the material details thereof and evea the names of the accused persons (including that of the one who is said to have been caught at the spot and handed over to the police) are not mentioned in it. 3. The Petitioner who belongs to the accused party filed a writ petition in the High Court asserting that Report No. 1 recorded in the Daily Diary of the Police Guard Room of the Lahore High Court was the real FIR and prayed that the First Information Report based on the state ment made by Shakil Asghar before the SHO Old Anarkali, Lahore, on the basis whereof the investigation was carried out and the accused were challaned, should be declared to be 'illegal' and 'without lawful autho rity'. The writ petition was, however, dismissed by the High Court vide the impugned order, Feeling aggrieved the petitioner has challenged the above-noted order through the present petition. 4. We have heard the petitioner's counsel in support of the abovementioned prayer, at some length, but are unable to agree with him. Admittedly, the S, H. O Old Anarkali, Lahore recorded the statement oi Shakil Asghar and sent it to the Police Station for registration of a case in exercise of powers under the Code of Criminal Procedure, as such was obviously performing functions in connection with the affairs of Provincial Government, it cannot, therefore, be said by any stretch of imagination, that the FIR, in question was either illegal or witnout lawful authority. The question as to waether it was the information given first in point of time and should be considered as an F. I. R , is a matter which squarely falls for determination by the trial court and cannot be dealt with while exercising writ jurisdiction. As a result of the above discussion we are of the view that the High Court was justified in dismissing the writ petition. The petition is conse quently dismissed as being without any merit, (TQM) Petition dismissed.
PLJ 1985 SC 126 PLJ 1985 SC 126 [Appellate Jurisdiction] Present : muhammad haleem CJ ; aslam, riaz hussain, shafiur rahman & zaffar hussain mirza, JJ Mian ZIAUDDINAppellant versus PUNJAB LOCAL GOVERNMENT ELECTION TRIBUNAL etc,Respondents Civil Appeal No. 746 of 1984, heard on 2-12-1984. (i) Punjab Local Government Ordinance (VI of 1979) S. 19 read with Punjab Local Councils (Election) Rules, 1979 R. 34VoteRight ofVoter-Identification of-National identity cardProduction ofRequirement ofStatute itself making require ment of production of identity card directoryHeld : Rules framed under Ordinance not to go beyond and over-reach Ordinance itself Held further : To make implementation of statutory provision consis tent and harmonious, directory effect to be given to requirement of rule [P. 128] (ii) Punjab Local Councils (Election) Rules, 1979
R. 34 (1) read with Punjab Local Government Ordinance (VI of 1979)S. 19Identity cardProduction ofRequirement ofHeld: Rule if read alongwith provision made in statute itself on same subject, conclusion regarding such (substituted) rule having directory and not mandatory effect to be inescapable. [P. 128]/4 (ill) Punjab Local Councils (Election) Rules, 1979
R. 34 (1)See : Punjab Local Government Ordinance (VI of 1979)_S. 19. [P. 128] Mr. Shaukat All, Senior Advocate Supreme Court instructed by Mr. Salim Ahmed Malik, Advocate-on-Record (absent) for Appellant. Mr, Zakiuddin Pal, Senior Advocate Supreme Court for Respondent (No. 2). Date of hearing : 2-12-1984. judgment Shafiur Rahman, J.Leave to appeal was granted to the appellant, an unsuccessful candidate at a Local Body Election, to examine whether not withstanding the amendment and substitution of sub-rule (i) of Rule 34 of the Punjab Local Council (Election) Rules. 1979 notified on 20th of September, 1983, the non-observance of it in an election held on 25th of September, 1983 did not vitiate the election as a whole. The appellant and respondent No. 2 contested elections to the Lahore Municipal Corporation from Unit No. 72 on 25-9-1983. Respondent No. 2 was notified as successful having obtained S912 votes against the appellant who secured 1062 voles. The appellant challenged the election of respon dent No 2 by an election petition under section 24 of the Punjab Local Government Ordinance 1979 (hereinafter refened to as the Ordinance). He took up a number of grounds but the one under examination in this appeal is the non-compliance with the substituted sub-rule (1) of Rule 34 of the Election Rules. The substituted rule provided "Where a voter presents himself at the polling station to vote, the Presiding Officer shall require him to produce his Identity Card issued to him under the National Registration Act, 1973, and on such production, issue to him a ballot paper". This amendment in the rule was notified on the 20th of September, 1983 and was published the same day in the Gazette extraordinary Issue. The grievance of the appellant in the election petition was that a large number of voters, over 2,000, were allowed to cast their votes without production of ths national identity card and without necessary entries of their numbers having been made in the counterfoils as required by the instructions under rule 34. The Election Tribunal dealt with the illegalities alleged by the appel lant in the following words "Even if it be considered as correct that some of the counterfoils of ballot papers do not bear the identity card numbers of the voters, this omission cannot be considered to be an illegality or corrupt practice, that may form basis for declaration that election is void". The appellant filed a constitutional petition in the High Court and the ground now under examination was taken up there pointedly and with greater clarity. The learned Judges of the High Court endorsed the view taken by the Election Tribunal in the following words "In such a situation, non-compliance will only be an irregularity. Voters or candidates cannot be punished for no fault of theirs for action or omission of another over whom they had no control, ff it were so, an official either willingly or unwittingly by his inefficiency, incompetence or indolence may deprive the voters of their franchise or succe^sf'il candidate of an elected office. There fore, it has always been the law that if elections have been held substantially in accordance with the statute 07 the rules and are not sham or traversity of an election by ballot, these are not to be avoided for mere irregularities or non-compliance of directory provisions". Se<? : PLJ 1934 Lahore 16? at p. i71. The learned counsel for the appellant has contended that the very words of substituted sub-rule (i) of rule 34 are peremptory and a precondition has been prescribed the fulfilment of which is obligatory before a voter can claim a ballot paper. According to the learned counsel, the intention of the rule making authority to make it mandatory may be manifested by attaching a penalty for non-compliance with the provision or by prescribing a pre-condition for the entitlement. It was the latter course which was adopted in this case and full effect must be given to the plain words of the rule. It was also urged that the instructions given to the Presiding Officer are complete and comprehenMve and provide for the production and examination of the National Identity Card and aoting of its number at proper place before the ballot paper is issued. An election conducted without complying with such a requirement would be replete with illegalities and must on that account be held of its own force and effect to have vitiated the election as a whole. Section 19 of the Ordinance makes a provision on the subject and is to the following effect "19. Every person enrolled as a voter on the electoral roll shall have the right of vote subject to proper identification for which he may be required to produce his National Identity Card issued to him under the National Registration Act, 1973 (Federal Act LV1 of 1973). Provided that if a person is enrolled more than once in the electoral roll of the same electoral unit or on the electoral rolls of more than one electoral units e shall be eligible to vote in one electoral unit only". If rule 34 is read alongwith the provision made in the statute itself on the same subject, the conclusion is inescapable that the substituted rule has a directory and not a mandatory effect. The statute itself makes the requirement directory. The rules framed under the Ordinance could not go beyond and over-reach the Ordinance itself. To make the implemen ation of the statutory provision consistent and harmonious directory effect must be given to the requirement of the rule. The rule of construction applicable to such provisions also leads to the same result. In the case of Chief Commissioner Karachi v. Jamil Ahmad and another (PLD !961 SC 145) the principle that as a general rule, a statute which regulates the manner in which the public officials shall exercise the power vested in them will be construed as directory rattier than mandatory, was recognised. The other principle of interpretation applicable to such a provision finds recognition in the case of Niaz Muhammad v. Mian Faza! Raqib (PLJ 1974 SC 73) in the following words "It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the acts shall be null and void. To put it differently, if the Act is direc tory, its disobedience does not entail any invalidity ; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision". It is, therefore, .;!ear to us thai the requirement of the substituted rule 34 (li is d ; 'C;ror> inJ :he High Conn has taken a correct view of the iaw. We would not, ;n the h" ! u of this finding, like to examine the factual contention of The respond?,'!! :hat even if all such tainted votes are e\cluded he still sucoe?;) 1 ; by a v-.-j- ...rain. The appeal is, therefore, dismissed with costs. (TQM) Appeal dismissed
PLJ 1985 SC 1 PLJ 1985 SC 1.29 [Appellate Jurisdiction] Present ; muhammad af/ai zullah, nasim hasan shah & AbDi't kaoi.r shaikh, JJ IBRAHIMAppellant versus AYAT GOL and Others--Respondents Criminal Appeal No, 16-P of 1984, decided on 22-12-1984. (i) Criminal Procedure Code (V of 1898)--
Ss, 497 &, 498 -Absconder-Grant of baii toAbscondence Rele vancy ofHeld : Long abscondence not to become irrelevant merely because f co-accused of accused concerned having, been acquitted during ab-.conJence, of such accused on consideration of evidence led by prosecution(n ome rare cases, however, notwithstanding abscondence, nccused to be released on bail IP. 1321/4 & B (ii) Crimina! Procedure Code (V of 1898)- ,_.,_Ss. 49? & 4«8BailGrant of - Abscondence Effect of - Socalled abscondence satisfactorily explained in case Held : Accused
to he entitled fo be released on bail. [P. 131JC (iii) Criminal Procedure Code (V of 1898) «
s. 497 (2)BailGrant ofFurther inquiryGround ofOfficer Incharge of Police Station or Court taking cognizance of matter coming to definite conclusion regarding there being no reasonable grounds for believing accused to have committed non-bailable offenceHeld : Provision having not left it to discretion of court to withhold bail to person accused of non-bailable offence, accused not to be denied right of bail granted to him on recording of such finding in his favourHeld further : Accused not to be released on ground of so-calied further inquiry under subsection (2) without such rinding by officer (incharge of Police Station) or Court. [P. !3!]£ (i») Constitution of Pakistan, 1973
Art. 185 read with Criminal Procedure Code (V of 1898)S. 497(5} BailCancellation ofNeither officer incharge of police Station nor court taking cognizance oi matter recording pre-requisite finding (regarding there being no reasonable grounds for beiiev;ng accused to have committed oon-hailabie offence Held : Respondent not to be released on bat! or, ground of so-called "further inquiry'' under sub section (2) of S. 497 Bail order passed by High Court set aside in circumstances. [P. I321F& G (v) Abscondence
Abscondence for long periodEffect of Co-accusedTrial of Relevancy of findings inEye-witness appearing against accused al ready disbelieved during trial of co-accusedHeld: Trial court to be entitled to form its own opinion in so far as believing or non-believing of certain piece of evjdeoce be concerned-Additional evidence exam ined at instance of parties or court at second trial and/or admission by accused furnishing corroboratory material also ao? to be excluded on account of any bar by any law or principle Held further . Very factum of abscondence ordinarily to be held as additional evidence against accused which item to be in addition to evidence led during trial of his co-accused, [Pp. 131 & 132JZ) Mr. Taimur Mohammad Hayal, Advocate Supreme Court instructed by Mr. M, Qasim Imam, Advocaie-on-Record (Absent) for Appellant. Mr. M. Sardar Khan, Advocate.Supreme Supreme Court for Respon dent No. 1. Mr. Bashirullah Khan, Asstt. A.G., N.W.F.P. for Respondent No. 2. Date of hearing ; 22-12-1984. judgment Muhammad Afzal Zuiiah, J.This appeal is directed against order dated ll-SI-1984 of the Peshawar High Court; whereby Hayat Gui respondent was allowed bail in a case under Sections 302/307/34 P. P, C, The appellant alongwith several others having been charged with offences of murder and attempt to commit murder in a case registered on 23rd July 1983, absconded for more than a year. He, it is stated by his learned counsel, surrendered soon-after the acquittal of his co-accused who were tried in his absence. After his arrest the learned Sesstions Judge refused to grant him bail after due consideration of the question of his abscondance as aiso the fact that he was directly charged by the deceased person in his dying declaration as the main culprit who shot at him. A learned Single Judge of the High Court however took note of the fact that the co-accused of the respondent having already been acquitted on conside ration of the prosecution evidence led in the case, the appellant was entitled to bail on ground of what he put as further inquiry. He also held that the abscondaoce of the accused could not be considered as an impediment in this behalf. Leave to appeal was granted on a petition filed by the father of the deceased for cancellation of bail to examine the effect of abscondaace for a, along time on concession of bail, corroboratory/confirmatory/additionai material cip ^:vcr ''~,t cvcluJcd on account of any bar by any law or principle. Arid t,: sav ttu- lea^c ibe very factum of abscondance would ordinarily he ,cd a> iddiru-'rui evidence against the respondent which item would be m addition ;o the evidence led during the trial of his co-accused and it cannot at all even svt urged that evidence of abscondance is not relevant in cases like the present one. Another aspect of the order of the High Court neeciv some observa tion. The respondent's case was also treated as one of "further inquiry" and that being so it was assumed as if there would be no alternative but to grant him bail without the satisfaction of any other condition. Admittedly it was not a case of further probe during the investigation by the police. The same having concluded the learned Judge did not use the phrase "further inquiry'' in that context. Be that as if may it is essential to point out that the concept of "further inquiry"' besides being mis-used in the grant of bail in many cases, the same iias not been pressed in service when refusing to grant bail The relevant provision of Section 497 in this behalf reads as follows : 497. When bail may be taken in c»se of non-bailable offence (1) (2) If it appears to such officer or Court at any stage of the investi gation, inquiry or trial' as the case may be. that there are not reasonable grounds for believing that the accused b;;s committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused snail, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without curette for his appearance as hereinafter provided." This provision does not leave it to the discretion or' the Court t u with hold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer mcharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that "there are no reasonable grounds for believing that the accused has committed a non-bailable offence". Without such finding by such officer or the Court the accused would not be released on ground of further inquiry under sub-section (2), And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the pre-requisite rinding. That being so the respondent could not be released on bail on ground of so-called further inquriy under sub-section (2) of Section 497 Cr. P.C. After hearing the matter at some length we deem it fit to allow this appeal and to set aside the bail order passed by the High Court. The re spondent Hayat Gul shall surrender to the custody of law. If he fails to do so this conduct might then be treated as further proof of his abscon dance. (TQM) Appeal allowed.
PU 1985 SC 142 [Appellate Jurisdiction PU 1985 SC 142 [Appellate Jurisdiction Present : muhammad afzal zuilah. shafiur rahman & M BURKANUDDiN KHAN, JJ Ch. ABDUL HAM1DAppellant versus DEPUTY COMMISSIONER etc.Respondents Civil Appeai No. 108/1984, heard on )0-4-1984. (i) Constitution of Pakistan, 1973-
Arts, 185 & 187 (i) read with Provisional Constitution Order (CMLA's 1 of 1981)Art. 9-High Court-Constitutional jurisdic tion ofFailure to exercise Order of Challenge to Supreme CourtPower to do complete justice Exercise of Case though fit for exercise of writ jurisdiction to relieve parties of illegalities and infirmities appearing on face of record without deciding factual controversy itself, High Court, refusing to exercise jurisdiction on ground of remedy (of election petition) being avail able in caseHeld : Supreme Court to do complete justice by allowing appeal and by invoking power and jurisdiction under Art, 187(1; of Constitution, [P.147J5 (ii) Constitution of Pakistan, 1973-
Arts. 185 & 187 (i) read with Provisional Constitution Order (CMLA's 1 of 1981)Art, 9 & Punjab Local Councils (Election) Rules, 1979Rr. 13, 15 & 16-Local Council-Election toSuccess ful candidateFailure to notifyReturning officer rejecting appel lant's nomination papers on ground of seconder in his case having already proposed another candidate\Dp;llate authority deciding appellant to be validiiy nominated candidateDispute, however, re mitted by Election Authority to appellate authority for decision afreshAuthority also allowing parties to contest electionRival candidate, however, not bringing up his ballot box with result that election remaining confined to appellant and respondent No. 3 Appellant though securing 247 votes in election as compared with 202 votes secured by other candidate appellate authority declaring and notifying respondent as duly electedHeld : Such orders of appeltate authority being of no legal effect, Election Authority to be directed to declare and notify appellant as duly elected, [P.147JC (Hi) Election disputes
RepellingRequirement ofDisqualification of appellant neither apparent nor notoriousHeld : Majority of voters of constituency not to be deprived of their votes nor candidate enjoying confidence of only minority to be allowed to represent constituency, fP.147j/i (i?) Pnnjab Local Councils (Election) Roles, 1979
Rr. 13, 15 & 16See : Constitution of Pakistan , 1973Arts. 185 & 187 (I). [P.147JC (v) Provisional Constitution Order (CMLA's 1 of 1981) -Art. 9See : Constitution of Pakistan , 1973Arts, 185 & 187 (1). [P.147JB&C Dr. A Basit, Advocate Supreme Court instructed by Ch, Mehdi Khan, Advocate-on-Record for Appellant. Ch. M Anwar Bhinder, Advocate Supreme Court instructed by Mr. S. Wajid Hussain, Advocate-on Record for Respondent No. 3. Mr. A. K. Dogar, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate-on-Record for Respondent No 4. Dates of hearing : 9 & 10-4-1984. judgment Shafiur Rehman, J,The appellant who successfuly contested the locai body election yet was disqualified seeks leave to appeal against the judg ment of the Lahore High Court dated 21-2-1984 whereby his constitutional petition was dismissed %vithout examining the merits of his case on the short ground that he had an adequate alternate remedy equally efficacious in law which he had not availed of. He was left 10 avail of that remedy as disputed questions of faci were sought to be resolved.By an order of this Court dated 21-3-1984, after examining the nature of the dispute aad the stages through which it had passed, the petition was converted into an appeal for considering, inter alia, the question whether in the presence of the reference made by the appellate authority to the Punjab Election Authority for a direction whether in the peculiar circum stances of the case, a fresh poll should be held, the Returning Officer could have without waiting for a decision on the said reference declared respondent No. 3 who admittedly obtained lesser number of votes, to be an elected candidate. The elections were scheduled to be held for Town Committee Ghakkar, Tehsil Wazirabad, District Gujranwala. The nomination papers were required to be filed on 31st of August, 1983. From Ward No. 7 there were four candidates. Muhammad Aslam respondent No. 4 filed his nomi nation paper on that date at 9 a.tn He was proposed by one Soofi Rehmat Ali son of Haji Khuda Bakhsb, a voter whose name appeared in the list of voters at serial No 443 in Ward No. 7. At 12-45 p.m. the same day, the nomination papers of the appellant were filed. It showed that the same Soofi Rehmat A!i son of Haji Khuda Bakhsh seconded the nomination of the appellant. On 8th of September, 1983 when the nomination papers came up for scrutiny this fact was pointed out on which the Returning Officer passed the following order ; "Soofi Rehmat Ali voter No. 443 seconder in the instant case has already proposed Muhammad Aslam, candidate. Papers of the former were received at 12-45 p rn and those of latter at 9 a.m. on the same day. Hence this one is rejected". The appellant preferred an appeal against the rejection of his nomi nation paper by the Returning Officer. It was heard by the Deputy Com missionerthe appellate authority, Gujranwala , He recorded the follow ing order "The person, who is alleged to have signed the two nosunaticm papers, is also present in this court. H has been heard. He swears on the holy Quran that he has only signed the nomi nation paper of the appellant whereas his name has been forged on the nomination paper of Muhammad Aslam. At the appellate stage it is not possible to hold a detailed inquiry to determine the veracity of these conflicting statements. I have no option but to go on the statement of Soon" Rehmat Ali, I, therefore, accept this appeal, set aside the order of the Returning Officer and declare Abdul Hameed, appellant, to be a validly nominated candidate in Ward No, 7 of Town Committee, Ghakkar, Tehsil Wazirabad, District Gujranwala". The consequence of this order on the nomination paper of Muhammad Aslam was left undetermined by the appellate order but a direction was given to that respondent to seek clarification or remedy from the Provincial Election Authority. It appears that both Muhammad Aslam and Abdul Hamid approached the Punjab Local Council Election Authority for relief against the appellate order of the Deputy Commissioner passed on 12th of September, 1983. The Election Authority took note of the nature of the controversy and observed as follows- "This cannot be decided in a summary manner, especially when there are only two days left for the poll. We are, therefore, of the view that both the petitioners and respondent No. 3 be allow ed to contest the election and the dispute between the parties be remitted to the Appellate Authority for decision afreh in accor dance with law. Both the parties present have no objection to such a course". The Election Authority directed the parties to appear before the Appellate Authority on 9th of October, 1983 for further proceedings; directed the Appellate Authority to allow the parties to lead evidence and meanwhile both the appellant as well as Muhammad Aslam were allowed to contest the election but the election result was not to be declared if any of these two persons emerged successful at the election pending the decision on the disputed question. The elections were actually held on 28th of September, 1983. The rival candidate Muhammad Aslam did not bring his ballot box to the Polling Station as required under Rule 30 of the Election Rules and the contest was confined to the appellant and Mian Zahoor Ahmed respondent No. 3- The former secured 247 votes and the latter 202 votes. On remand the Deputy Commissioner as the Appellate Authority sent the nomination papers alongwith specimen signatures of Soon' Rehmat Ali to a hand-writing expert. His report was to the effect that Soofi Rehmat Ali had in fact signed both the nomination papers. On 20th of November, 1983 the Appellate Authority held the nomination paper of the appellant invalid and that of Muhammad Aslam which was presented earlier as valid. However, taking note of the development that had taken place in the meanwhile, he observed as follows "However, an interesting situation has arisen because the elec tions have been held in this Ward on 28-9-1983 under the directions of the Punjab Local Councils Election Authority in which Abdul Hamid appellant participated but Muhammad Aslarn did candidate elected and ground for declaring election as a whole void respectively. Learned counsel further contended that there was no error of law or any other jurisdictioaa! defect in tnc impugned order", It was dealt with by the High Court as follows "Admittedly, the remedy of election petition is available to the petitioner before the Election Tribunal. This fact has not been denied by the Seamed counsel for the petitioner although he sub mitted that the peculiar facts of this case demand that this peti tion be decided on merits instead of directing the petitioner to go to the Election Tribunal". The learned Judges upheld the preliminary objection , did not examine the merits of the case and dismissed the constitutional petition of the appellant,There are two peculiar and outstanding features of the proceedings brought before the High Court for judicial review. The first is that 5he Election Authority while permitting Munammad Aslam and the appelian: to contest the election as validly nominated candidates, had directed the appellate authority to decide afresh their dispute in accordance with the Saw making it at the same time clear that the dispute could not be decided in a summary mariner. The other feature is that Muhammad Aslam wnose candidature had thrown up the dispute withdrew from the contest at the crucial stage as he failed lo place his baliot box, The appellate authority did not act on the words of the remand order inasmuch as li held so inquiry into the controverted question of fact. What it did wan to refer the two nomination papers !o the hand-writing expert and on receipt of the opinion of the expert gave effect to it. The appellate authority did not examine the parties concerned or their wit nesses nor formed an independent opinion of its own about the document before u on which the expert's opinion had been obtained. The value 10 be placed and the setting ia which the hand-writing ex pert's opirron has to be considered appear with clarity in the following passage lined from M. Monir Law of Evidence Vol. I (page 621) "of all kiridi of evidence admitted in a Court, this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a'place in our system of jurisprudence In view of this infirmity of expert testimony. : : t is seined prince :>i Courts not to base a finding merely on expert opinion. Conclusion based on mere comparison of handwriting must at bsii be indecisive, and yield to the positive evidence in the case" The same view has been expressed by this Court in Syed Sbabbir HossaiD v. The State (1968 SCMR 1126) in the following words "The evidence of the handwriting expert is neither the only nor the best method of proving the handwriting or signature of a person. It is at best oniv opinion evidence".The enquiry made by the Appellate Authority and the conclusioa reached were legally defective in more than one respect.. After recording the conclusion that the appellant's nomination papei was invalid, the appellate authority sought direction from the Election Authority on a repoli after eliminating the appellant a contesting candi date. The Election Authority did not advert to that specific inquiry nor did the Appellate Authority or the Returning Officer reconsider the matter of a repoll. Where the disqualification of the appellant was neithcrj apparent not notorious, the majority of voters of that constituency should not have been deprived of their votes nor a candidate enjoying the con-: fidence of only ;i msnoritv shou'd Iv.ve been allowed" to represent thej constituency. This state of affairs brings us to the relief. It would be out of time and out of place to cai! upon the Appellate Authority to redecide the issue, or tc direct the Election Authority to consider the question of repol! We also endorse the view that the stage to which the event have brought the parties, recourse to the Ejection Tribunal is more appropriate but then the question is should the candidate obtaining the majority of votes have recourse to it or the candidate obtaining lesser votes. li has been, pointed out this by Court in the case of Murree Brewery c. I'a&iitan (1912 SC 279. shot the "rule that High Court will not enter tain a writ petition when other appropriate remedy U available is not a rule of law barring jurisdiction but a rule by which the court regulates its jurisdiction". On the facts already noted it was a case where the jurisdiction should have been exercised to relieve the parties of the illegulities and infirmities appearing on the face of the record, without of course deciding thi factual controversy itself. In addition, we would at this stage invoke our own power and jurisdiction under Article 187 (!) of the Constitution to do complete justice. The result is that the appeal is allowed. The order of the appellate authority dated 20th November, 1983 aad one declaring and notifying the respondent No. 3 (Mian Zahoor Ahmad) as duly elected are held to be without lawful authority aad of no Sega! effect. As a consequence thereof and with a view to mould di.- relief to suit the changed situation, we direct the respondent No. 6 (Election Authority) to declare and notify the appellant as the duly elected candi date from Ward No. 7, This shall be without prejudice to the right of any of the respondents to challenge the election before Election Tribunal on any ground available to it under the law. No order as to costs. (TQM) Appeal allowed.
P1J 1985 SC 147 [Appellate Jurisdiction] P1J 1985 SC 147 [Appellate Jurisdiction] Present : shafjur rahman, M S.H. quraishi & mian burhanoddjn ksan, JJ MUHAMMAD SADIQ (deceased) represented through Legal RepresentativesAppellants versus MUHAMMAD RAFIQ etc,Respondents Civil Appea! No. 232/1976, decided on 12-11-1984, (i) Constitution of Pakistan , 1962 -Art. 98 read with Constitution of Pakistan, 1973Art, 185High CourtConstitutional jurisdiction ofCivil Procedure Code (V of 1908)Applicability ofNecessary and proper partiesFailure to implead--Effect or'Held : Proceedings before High Court on con stitutional petitions being governed by Code of Civil Procedure, necessary parties to be persons who ought to have been joined as parties and in whose absence no effective decree or order to be passedHeld further : Persons at whose instance suo motu powers to be exercised not in every case to be necessary parties particularly so when no relief be sought against them in proceedings Person not made party not directly beneficiary of order nor success of constitu tional petition leading to deprivation of any of her established right Held: Petition in High Court not to fai! on ground of such person having not been impleaded as party. [Pp. 152 & \53]A & B PLD 1970 SC 1 & PLD 1963 SC 663 ref. (ii) Displaced Persons (Compensation & Rehabilitation) Act (XXVIII of 1958) S, 20Settlement CommissionerRevisional jurisdiction of Suo motu exercise ofPermanent Transfer Or^er having already been iss ued in favour of appellant, Settlement Authorities becoming functus officio for all purposes except to re-open proceedings on ground of misrepresentation or fraud Settlement Commissioner, however, exercising suo motu revision on ground of no form being traceable on file No finding regarding no form having been filed or no application having been made by appellant for transfer of property recordedHeld : Ground on which suo motu revision allowed to be palpably untenable. .[P. 153]C PLJ 1975 SC 185 ref. (iii) Displaced Persons (Compensation & Rehabilitation) Act (XXVIII of 1958)
S. 20 read with Constitution of Pakistan, 1962Art. 98 & Consti tution of Pakistan , 1973 Art. 185 Settlement Commissioner Revisional jurisdiction of Suo motu exercise ofChallenge to Ex ercise of Suo motu revisional power and determination of entitlement of appellant taking place at hands of non-statutory functionaries (Martial Law Authority)Interference with permanent transfer order made on palpably incorrect assumptions Held : Order of Settle ment Commissioner interfering with permanent transfer in favour of appellant to be without lawful authority and of no legal effect. [P. 153JD (iv) Constitution of Pakistan , 1962 -Art. 98-See : Displaced Persons (Compensation & Rehabilitation) Act (XXVIII of 1958)-S 20. [P. 153J0 ^v) Constitution of Pakistan, 1973
Art. 185See : Constitution of Pakistan , 1962Art. 98. [Pp. 152 & 153\A & B (vi) Constitution of Pakistan , 1973 Art. 185See : Displaced Persons (Compensation & Rehabilitation) Act (XXVIII of I958)-S, 20. [P. 153]£> Maulvi Sirajul Haq, Advocate Supreme Court for Appellant. Mr. Samad Mahmood, Advocate Supreme Court for Respondent No. 1. Date of heariag : 23-10-1984. judgment Shafiur Rahman, J. Leave to appeal was granted to Muhammad Sadiq who has since died to examine whether the High Court had justifiably by itsorder dated 26-1976 refused relief to him on his failure to implead in the constitutional petition Mst. Janat Bibi the mother of respondent No. 1. The dispute between the parties relates to a shop No. 142 in
Kahuta classified as a major village for the purposes of Settlement Scheme No. VII, This shop was allotted to Muhammad Rafiq on 4-9-1958. After getting the allotment, he sought its possession and the Tehsiidar. .acting as Assistant Settlement Commissioner, passed an order directing delivery of possession of the shop to him. An appeal was preferred to the Deputy Rehabilitation Commissioner (Land) by Muhammad Sadiq predecessor-ininterest of the appellants which was allowed and his ejectment from the shop was refused. A revision petition was then filed before the Additional Settlement Commissioner who dismissed it on 19th of December 1962 by observing as follows : "By now settlement scheme No. Vil has been enforced and thereafter the question of ejectment from any evacuee property in rural area oes not arise. The case would, therefore, be dealt with under scheme No. VII as already held by the learned D.R.C. (Land). It may, however, be dded that the shop under const- ^ deration is situated at Kahuta which has been declared as a Town Committee for the last few years. The ase would, therefore, fall under para. 5 (1) of scheme No. VII and the Asstt : Settlement Commissioner, Kahuta would, therefore, consider the merits of oth the parties for the transfer of this shop in accordance with the law on the subject. With the above remarks the revision petition is rejected". The espondent Muhammad Rafique once again approached the Tehsiidar for getting the possession of the shop and his case was recommended by the ehsiidar and forwarded by the Revenue Officer on which the Deputy Settlement Commissioner (Land) passed an order on 31st of August, 1965 reeing ith the report of the Tehsiidar and directing 'if the handing over of possession of the shop to the respondent. An appeal was preferred against that rder to the Additional Settlement Commissioner (Land) Rawalpindi , which was allowed on the sole ground that the occupant Sadiq had not been heard nd the matter was remanded to the D.S.C. (Land) for a fresh decision after bearing the affected person. On remand the matter was taken up by the D.S.C. (Land). He took note of the orders passed in 1962 and upheld the order of the D.R.C. dated 14-9-1962 omitting to take note of the order passed in revision by the Additional Settlement Commissioner on 19-12-1962. The appellant Muhammad Sadiq applied for the transfer of the shop in his possession under Settlement Scheme No. VII and it was transferred to him by an order of the Assistant Settlement Commissioner, Kahuta, on 11-3-1967. Against this order an appeal was filed by Muhammad Rafiq but it was dismissed on 26th of October, 1967 and the observation was : "The appellant was granted enough opportunity by the lower court to prove his contention that he is in occupation of the siiop in dispute before 1-1-1961 but he hss failed to prove his contention". pnce of tbe shop which was id the neighbourhood of Rs. 1000.- iited by the appellant on iflth of April, 1967 and a Permanent Order issued to him on llth of April, 196? reserving the follow ing right of iht Settlement Department in i-e property : "The Settlement and Rehabilitation Authority shall be entitled to resume the whole or any part of the said property if such authority is satisfied and records a decision into that writing effect, that the transfer of the said property or any other compen sation in any form whatsoever under the scheme had beer, obtained by fraud, false representation or concealment of any material fact on the part of the transferee or of his predecessor-ininterest", Jaaat Bibi the mother of respondent Muhammad Rafiq addressed an application on 7th of April, 1969 to the Martial Law Administrator, Tehsi! Kahuta. In this application, it was contended that the shop was allotted to Muhammad Rafiq who had given it out at the rent of Rs. 15/-per month to the appellant who had manipulated to get it transferred ignoring altogether rights of her son. The application was marked by the Martial Law Headquarters to the Tehsildar for investigation and a report on facts, An inquiry was held by the Tehsildar who submitted a detailed report, the relevant portion of which is re-produced hereunder : "The Addi. Rehabilitation Commissioner had referred the parties to get the case dealt under Scheme VII, when the ejectment of Mohammad Rafiq from the shop was under issue. It shows that since Muhammad Rafiq remained in occupation of the shop against the consent of the original allottee of the shop resentment on the part of allottee never abated, and he did not relax so seeking redress of ths wrong which he thought had been done to him. Another point which should have been worth-consideration of the Rehabilitation authorities, -vas that had the original allottee surrendered his rights to a local shopkeeper. How could he ask for the ejectment much before coming into force Scheme VII ? It seems that he thought him as a trespasser after the local man asserted his right of possession over the shop, regularly allotted to him". He concluded the report with the following observations :"I do not think that if we proceed on the principle of justice and equity we can ignore the rights of claimant Muhammad Rafiq who remained in possession of the shop since the partition and was dislodged through ingenious and contrivance and legal hitches created under garb of Rehabilitation law". On this report the Headquarters Martial Law Administrator Sub Sector 2 communicated to the Deputy Settlement Commissioner and to the Additional Deputy Commissioner its conclusions in the following words "The contents of the investigation carried out by Tehsildar Kahuta has been gone through minutely and it is considered that allotrnent of the disputed shop to Muhammad Sadiq is unjustified. appellant 10 imniead he; as a party. The constitution petuon was dis missed wjth the following observations [fa little care haJ hstii taken a:, to who arc to bs ...tcd a-respondents to these proceedings it would have been obvioub even from the title of (he impugned order itself that Msi. Janat Bibi had to be impleaded as party to these proceedings. For clear negligence no indulgence can be shown, especially when rights have come to accrue to other persons. In this view of the matter, this petition is liiable to be dismissed on the sirnpe ground that the person on whose motion the impugned order was passed has not been cited as a respondent in the proceedings The property has been ordered to be disposed of afresh anJ if the respondent had filed the form, his form has been ordered to be considered. If the property is transferred to the respondent, a displaced person then that is the end of the matter so far as the petitioner is concerned who is a local. If that is not done, then the petitioner's case for transfer may be considered", The learned counsel for the appellant has contended that on no principle of law could it be held that Mst. Janat Bibi was a necessary party to the proceedings in the High Court and her absence from the proceedings must necessarily lead to its dismissal. The shop had been allotted to Muhammad Rafiq "'^ was impleaded as a respondent. It was his cause that Mst. Janat Bin iiadl taken up. She had not herself claimed any right either through her husband or through her son. She was not an aggrieved party nor had she filed a revision petition before the Chief Settlement Commissioner, As a matter of fact she had approached the Martial Law Authorities in order to get the Permanent Transfer Order in favour of tru appellant cancelled. The Chief Settlement Cc.nmissioner had also in re opening the proceedings exercised suo mom powers, In such a situation where no relief could be claimed against Mst. Janat Bibi nor in fact was claimed against her the proceedings could not be defeated or stultified by holding that she was a necessary party and her absence was fatal to the proceedings, As regards the ground on which the suo motu revision was allowed the learned counsel urged that it has been recorded in defiance of the material on record. He has in support of his contention filed two attested copies of the application filed by the appellant on different dates earlier to the transfer order seeking transfer of this shop and that transfer had con cluded with the dismissal of the appeal filed by the respondent. Besides, all the authorities even the Martial Law Authorities held that at the rele vant date the appellant and not the respondent was in occupation of the property. None of these authorities had held that Muhammad Sadiq was occupying the property at any stage as a tenant of the allottee. It was not the case of the allottee himself before the Settlement Authorities from whom he was seeking his eviction: It is contended, therefore, that the orders passed in suo motu revision are unsustainable on any ground whatsoever. Proceedings before the High Court on constitutional petitions are as held by this Court in the case of Hussain Bakhsh i. Settlement Commis sioner, Rawalpindi (PLD 1970 SC 1) governed by the Code of Civil Proce dure. Necessary parties under the civil procedure are persons who oueht to have been joined as parties and in whose absence no effective decree or order can be passed, la the present case from whatever angle welook at the locus standi of Mst Janat Bibi we find that she cannot be termed as a necessary party merely because she had moved a miscellaneous application before the Martial Law Authorities which had in turn led to the exercise of suo motu revisional powers by the Chief Settlement Commissioner. The parties at whose instance suo motu revisional powers are exercised cannot be in every case the necessary parties particularly so when no relief is sought against them in the proceedings and none on the facts of this case could be sought against Mst. Janat Bibi, She was not directly the bene ficiary of the order nor the success of the constitutional petition would have led to the deprivation of any of her established rights. In the case of East and West Steamship Co. v. Queensland Insurance Co, (PLD 1963 SC 663) it was held that where no relief is sought in the proceedings and the party is not directly affected by the relief sought in the proceedings that party is not a necessary party to the proceedings. At best it would be only a proper party. No proceedings can fail on account of the absence of a proper party. In the circumstances, we consider that the petition in the High Court could not fail on the ground that Mst. Janat Bibi was not impleaded as a party, The ground on which the suo motu revision was allowed is palpably untenable. Not even a finding was recorded that no form had been filed or no application had been made by the appellant for the transfer of the property. What was said was that the form was not traceable on the file. It appears that more than one applications for the transfer of the property were filed and they were on the appropriate file as it appears from the attested copies filed. Besides, in this case the Permanent Transfer Order had issued in favour of the appellant and the Settlement Authorities were for all purposes functus officio except to re-open the proceedings on the ground of mis-representation or fraud as held by this Court in the care of the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazi) Khan (PLJ 1975 SC 385). None of the authorities not even the Tehsildar who held the inquiry at the behest of the Martial Law Authorities has held that the appellant was not in possession on the crucial date or that his possession over the property was that of a tenant. It will be clear from the proceedings of which a gist has been provided above that the proceedings had concluded after repeated efforts made by the respondent to get possession of the property and his failure every time, and finally by the determination of his entitlement and dismissal of the appeal filed by the respondent. What appears established ex facie from the record is that the deter mination of the entitlement of the appellant had taken place at the hands of anon-statutory functionaries (Martial Law Authority) that the exercise of suo motu revisional power was at their behest and that interference with the permanent transfer order was on palpably incorrect assumptions. Hence we allow this appeal, set aside the impugned order of the High Court, and further hold that the order of the Settlement Commissioner interfering with the permanent transfer in favour of the appellant as one without lawful authority and of no legal effect. The transfer in favour of the appellant shall remain intact. No order as to costs. (TQM) Appeal allowed.
PLJ 1985 SC 166 [Appellate Jurisdiction] PLJ 1985 SC 166 [Appellate Jurisdiction] Present : shafiur rahman, M.S.H, quraishi & mian burhanudoin khan, JJ WAJID ALI (deceased) through Legal Representatives Appellant versus Syed SAJID ALI (deceased) through Legal RepresentativesRespondent Civil Appeal No. 36/1975, heard on 22-10-1984. (i) Constitution of Pakistan, 1973 Arts. IBS & 187 Appeal to Supreme Court Right of Restric tions onAppeal against final order of High Court filed before Supreme CourtSuch Court also possessed of power of doing comp lete justice in case Held : No restriction or curtailment of power (except those justified on merits in individual cases) to be properly read in Art, 185 (2) (e), [Pp. 172 & 173JC (Si) Constitution of Pakistan, li»73- -- Art. 185 (2) (d) & (e) and Arbitration Act (X of 1940) S. 39 Appeal to Supreme Court Right of Held : Constitutional juris diction of Supreme Court in appeal as of right under Art. 185 subclause (d) 01 (e) not to be whittled down by S. 39 of Arbitration Act. [P. (iii) Constitution of Pakistan, 1973 -- Art. 185 (2) (#) Appeal to Supreme CourtRight ofExpression "like amount" or << value"-~Meaning of Held : Expression "like amount" or "value" clearly referring to amount or value (i.e. fifty thousand rupees) and not necessarily to two stages, stage of court of first instance or of appeal not to be held to be covered by such expression.f P. 172J-4 Constitution of Islamic Republic of Pakistan by M. M uair ref (if) Arbitration Act (X of 1940) -- Ss. 21 & 2 (c) Arbitration Reference to Appellate court Powers ofHeld : Appellate court being possessed of all powers enjoyed by court from which appeal be received or in which proceed ings be initiated, High Court as well to enjoy in appeal power of making reference to arbitration- Held further : High Court though stricto ssnsu not Civil Court, powers enjoyed by Civil Court under S, 21 to be available to it as appellate court. [P. J73JZ) Arbitration Act (X of 1940)
S 21 read with Civil Procedure Cods (V of 1908)S. 100Arbitration Reference to-Appellate court -Power of-Held; Reference of any matter in difference between parties to suit having been pro vided in S. 21, such difference not to be narrowed down to only law points at stage of appeal (without any particular reason) Heid further : Parties being competent to enter into compromise in second appeal not oniy on points of law aione but also on questions of fact, all differences between parties arising in proceedings initiated by civil suit and brought before appellate court to be competently referred to arbitration. [P. 174]£ (Ti) Arbitration Act (X of 4940)
S, 30AwardSetting aside ofUmpireDisqualification of Objection application neither disclosing any personal or proprietary interest of umpire nor reflecting his personal bias against appellant Held : Umpire not to render himself disqualified on anyground what soever. [Pp. 174 & 1751F Arbitration Act (X of 1940) S. 30UmpireAward byReasons forUmpire having occasion to take full view of dispute between parties, prefering opinion of one of arbitratorsBoth arbitration giving reasons for arriving at diffe rent conclussion Umpire, however, giving no specific reasons for agreeing with opinion of one of arbitrators Held : No specific reasons to be required to be recorded in award by umpire, (P. !75]G (iii) Arbitration Act (X of 1940) S. 30AwardSetting aside ofGround forParties, while choos ing forum of their own choice, submitting to arbitration proceedings On difference of opinions between two aubitrators, umpire giving his awardObjections to award found all untenableHeld : There being no merit in any of grounds urged by appellant, appeal against order of High Court (making award given by umpire rule of court) to fali. [P. 175]// (ix) Arbitration Act (X of 1940)
S. 39See : Constitution of Pakistan , 1973Art, 185(2) (e). [P. 112}A (x) Ciril Procedure Code (X of 1908)
S. 100See : Arbitration Act (X of 1940)S. 2i. [P. 174]t Mr. Abid Hussan, Minto, Senior Advocate Supreme Court instructed by Mr. M. A. Siddiqui, Advocate-on-Record for Appellant. Kh. M. Farooq, Advocate Supreme Court instructed by Ch. Akfitar AH, Advocate-on-Record for Respondent, Dates of hearing : 21 & 22-10-1984. judgment Shafiur Rahman, J.This appeal is as of right by the plaintiff under Article 185 (2) (e) of the Constitution, It is directed against the judgment of the High Court of Lahore dated the llth of March, 1975 whereby the award given by aa Umpire was made rule of the Court notwithstanding tbe objection of the appellant and a decree in terms followed, The appellant iaiutu'ed a civil suit claiming a Jeciaration :ha; he was the owner of a share In property msasuring 676 .tats/.? 13 maria; in village Khanpur, Tehsil Kha-our, District Rahisnyarkhan. If was h ; s case t'rut he had received this land on transfer from his brother, the respondent, in 1928 and since then had been enjoying it as its owner The revenue record showed thai two mutations had been entered and attested. One mutation (No. 1126) was attested on 2 ith of January, !9o3 and che other (So. if32) was attested on 23rd of October, 1963 whereby he was shown to have retransferred this land to the respondent, lie challenged these entries and the transactions reflected by them and asserted his right of ownership over the land. He took up the grounds, inter aits, that any such transaction was violative of M. L. R. 64, apart from the fact that he himself had never subscribed to it. This suit was contested by the respondent on numerous grounds including the one thai there was no transfer by him in 1928 and it was only an ostensible device "by which the land was shown transferred to the appellant. It was pleaded that the respondent had been in enjoyment of his share in the land' and the appellant had never repudia ted his interest and title in the same. It was in recognition of such interest,,and to give effect to his rights, that these two mutations which were being challenged by the appellant, were got attested in his favour. A number of issues were framed on the pleadings of the parties but in view of the nature of the controversy at this stage of the litigation, it is not necessary to re-produce ali of them, "The trial Court after recording evidence decided the case on merits in favour of the appellant and decreed the suit. An appeal filed by the respondent failed "before the District Judge on the 25th of October, 1967. A second appeal was then tiled in the High Court. While the second appeal was pending in the High Court, a joint application was made by both the parties, who are brothers inter se, expressing their agreement to get the matter decided by a reference to arbitration. They also agreed to the reference of" the dispute to Mr. Inayat Ali, Advocate of Khanpur. On !4th of November, 1968 a learned Judge of the High Court passed the following order "Parties have agreed ?o refer ihe dispute to Arbitrator, Sh. loayat A!i, Advocate of Khanpar. The Arbitrator to follow the pro visions of Arbitration Act, 1940 aad should put in h:s award. within four months". The appellant filed an application on 25th of November, 1968 seeking an order of the Court superseding the reference to arbitration and request ing the decision of the appeal in accordance with Jaw by the High Court itself. He took up a number of grounds for avoiding the reference to which he had earlier agreed and these were, among others, mis-repre sentation and undue influence. The one ground which has, however, persisted and requires to be decided at this stage was in the following terms "That'the appellate Court has no power to make a reference to arbitration because it is not a court within the meaning of section 2 (c) and section 21 of the Arbitration Act". The respondent resisted the request of the appellant and contended that the arbitration agreement was legal, enforcible and binding on the parties and could not in law be superseded on the plea of alleged mis-represea- (2) An appeal shall lie to the Supreme Court from any judg ment, decree, final order or sentence of a High Court (a) ... (b) ... (c) ... (d) if the amount or value of the subject-matter of the dis pute in the court of first instance was, and also in dis pute in appeal is, not less than fifty thousand rupees or such other sura as may be specified in that behalf by Act of Parliament and the judgment, decree or final order appealed from has varied or set aside the judg ment, decree or final order of the court immediately below ; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below ; or (3) ... The reference to sub-clause (d) found in clause (e) is only with regard to "property of the like amount or value". This expression finds laborate mention in clause (d) and in the words "if the amount or value is loot less than 50,000,'-rupees". The expression 'like amount' or 'value' {clearly refers to the amount or value, that is, fifty thousand and not necesjsarily to the two stages, that is, the court of first instance also in appeal. 'These stages cannot be held to be covered by the expression 'amount' or 'value'. The late Justice M. Munir in his commentary on the Constitu tion of Islamic Republic of Pakistan while taking note of this provision has observed as follows "It will not be noticed that sub-clause (e) does not specifically require that the value of the property in the court of first instance must be fifty thousand rupees or more though it is apparent that if the amount involved in the claim or question before the court was fifty thousand rupees or more the same must have been the minimum amount or value involved in the court of first instance".If the interpretation as given by the learned counsel for the respondent is placed on this provision, there would not be much of the difference left between sub-clause (d) and sub-clause (e), The constitutional jurisdiction of this Court in appeal as of right under Article 185 sub clause (d) or sub-clause (e) could not be whittled down by section 39 of the Arbitration Act because there is an exception contained in that very section and we do not see how a constitutional power can be curtailed by an Act of Parliament. The third objection of the learned counsel for the respondent also relates to the scop of an appeal filed as a matter of right. As this minatiou, proceedings before different tribunals being only steps <n this procedure".The learned counsel for the appellant is not or, strong grounds in contending that as cfae scope of the second appeal is restricted to questions of law, the reference to arbitration rausJ necessarily be confined to only questions of law and cannot extend to controversy of fact already dealt with by the fact finding courts. Section 21 provides for reference of any matter in difference between the parties to the suit and there is no particular reason why at the stage of appeal the differences should be narrowed down to only law points just as a compromise can be entered into the: second appeal not only on points of law alone but aiso on questions of fact, the ail the difference between the parties arising in the proceedings initiated bycivil suit and brought before the appellate Court can be referred to arbitration. There were three objections taken to the conduct of Umpire at different stages of the proceedings. The first objection was taken up when the two arbitrators differed and there arose an occasion for referring the dispute to the Umpire. By an application filed by the appellant, it was contended that Cfa. Farzand Ali, Advocate for the respondent was on friendiy terms with the Umpire. Besides, the umpire was also on friendly terms with one Masood Sami who was interested in the success of the respondent. A learned Judge disposed of this objection on the 30th of January, 1970 by observing as follows : "The authority of an arbitrator can be revoked under section 5 of the Arbitration Act only if it. is proved either that the arbitrator has mis-conducted himself for the proceedings. The position of the Umpire is not different from an arbitrator. In the absence of any allegation on the part of ASlama Rehmat Ullah Arshad as to personal or judicial misconduct, the question of revocation of his appointment does not arise'. On receipt of the award two objections were taken to it. The first was that the arbitrator was required to consult the record of the Courts for deciding the question referred to him. He had not, according to the learned counsel for the appellant, done so. The second objection was that he had not given his independent award and the reasons therefor. He had instead agreed with the award of one of the arbitrators. These objections were disposed of by the learned Judge after recording evidence on the objection and particularly after examining the Umpire himself. These were found untenable and rejected. This matter was brought, by a peti tion for leave t_o this court and was disposed of in the following words "The award clearly shows that the Umpire has read the decision of the two arbitrators. He also heard the parties, heard the argument of their counsel and thereafter came to the conclusion that the decision of Syed Asad Hussain is based on correct facts and consideration of documents. In our opinion, in these circum stances, it cannot be said that the umpire has mis-conducted himself. The High Court has rightly rejected the objection", I There is nothing new urged on behalf of the appellant regarding the rtrais-conduct of the umpire. The samp grounds are being reiterated. So far as ftta first objection application is concerned as it" did not disclose an,y personal or proprietary interest of the "umpire nor reflected a personal b n!'the umpire against the appellant there was no question of tbs -impirc ^ 'entering himself disqualified on any ground whatsoever. As r?garck the other objections, we find that the umpire was examined as a witness, Bsl stated therein that the parties had agreed thai instead of rscording the statement of parties and of their witnesses afresh, the umpire should decide the dispute en the basis of the record of the Court, This request was noted by the umpire. No question was put to him at ail. as to which record he » consulted and which record he omitted to consult. Such a question and answer to it alone would have demonstrated whether there has really been a violatioa on th? part of the umpire to consult the relevant record and ii
o. what was its Ssgal effect. In the absence of it the very substratum on. the basis of which such an argument is being advanced disappears, Wej find from the award given by the Umpire that he had occasion to take full '"lew of the dispute between the parties and has preferred the opinion of one of the arbitrators. It is to be noted that when the proceedings reached, ~ ~ him there was the considered recorded opinion of the two arbitrators before him Both had given reasons for arriving at different conclusions, The parties had declined to produce further evidence or to get themselves examined with respect to it. Their only concern was that the Umire should decide the matter in the light of the two awards before him and the record of the case. He did so and preferred the award given by one of the arbitrators. It is true that it does not contain the specific reasons for agreeing with it but at that time no such reasons were required to be ft 4 recorded. It appears from the proceedings that the parties had chosen a forum of their own choice They had submitted to the arbitration proceedings and ± the award given by the named Umpire. Reasons for objecting to the award H are found ali antenabie In the circumstances, there is no merit in any of! the grounds urged by the leanred counsel for the appellant. The appeal! fails and is dismissed with costs, (TQM)Appeai dismissed,
PLJ 1985 SC 175[Appellate Jurisdiction] PLJ 1985 SC 175 [Appellate Jurisdiction] muhammad haleem, C.J ; aslam riaz hu^ain nasim hasan shah & shapiur rahman, JI FEDERATION OF PAKlSTAN-Appellam versus AZAM A Li err. Respondents Civil Appeal Nos. 23 (also 24. 25 and 26) of !984, decided on 12-12-194. (i) Civil Servants Act (LXXI of 1973)
S. 9SeniorityDepartmental candidates Eligibility for promotion Held : Departmental candidates to be eligible for promotion only against quota reserved under rules for their promotion Reser vation m ratio of 75 to 25 per cent fixed in favour of direct recruits Held : Departmental candidates not to be eligible for promotion against quota in excess of quota reserved for them. [Pp, 181 & 182j£> & £ (ii) Civil Servants Act (LXXl of 1973}--
S. 9Departmental candidates ~ Promotion of Quota t'or Respondents initially promoted not agamst vacancies reserved for promotion ia terms "of S 9Held : Respondents being eligible for promotion against such vacancies alone, their promotion to be re gular from date vacancy reserved under ruies for departmental pro motion occurred. [P. 184]// (iii) Civil Servants Act (LXXI of 1973)
Ss. 9 & 25 (2) SeniorityGeneral principles regardingValidity ofGeneral principles relating to seniority applicable to ail Federal employees circulated on 3Ist Dec. 1970Held : Such principles of seniority contained in instructions of 1970 (and published in Esta Code 1983 at p. 153) being not inconsistent with provisions of Act, same to acquire character and force of rules under Act at strength of its S. 25 (2), [Pp. 1S1 & 183J-4 &/ (iv) Civi! Servants Act (LXXI of 1973)
Ss 9 & 25 (2) read with Civil Servants (Change in Nomenclature of Services and Abolition of classes) Rules, 1973 Rr. 5 & 8 and General Principles relating to seniority contained in Esta Code. 1983 EdnP. 153PromotionReservation of quota for Promotees Seniority against direct recruits Claim of Held : Promotee to claim seniority aga-nst direct recruits only from date when his promotion to be (completely) adjusted against promotion quota Held further : S. 9 of Act itself having provided for reservation of quota for promotees, rules framed under Act not to abolish what Act per mitted. [P. 181JS& C Or) Civil Servants Act (LXXI of 1973) S, 25 (2)Civil servantsTerms and conditions ofInstructions regardingInstructions contained in circular of December 1970 not found to be inconsistent with any provision of ActHeld : Contents of such circular to acquire force of rules under Act. [P. 183jF fvi) Service Tribunals Act (LXX of 1973) -S. 4 read with Constitution of Pakistan, !9?3 Art. 212-Appeal to TribunalLimitationBar ofObjections filed by contesting respondents against seniority list standing finally disposed on 26-8-1981 Appeal, before Tribunal, however, filed within one month of rejection of another representation on 17-3-1982Held : Case having been heard on merit and application for condonation of delay having also been filed, Supreme Court not to non-suit claims on ground of limitation alone. [P. 1831G (vli) Constitution of Pakistan , 1973
Art. 212See :
Service Tribunals Act (LXX of 1973). S. 4.
[P. 183]
"Any rules, orders or instructions in respect of any terms and conditions of service of Civi! Servants duly made or issued by an authority competent to make them and enforced immediately before the'commencement of this Act shall, insofar as such rules orders or instructions are not inconsistent with the pro visions of this Act be deemed to be
Rules under the Act."
The first Seniority List that was circulated in 1976 can be said to be provisional because in para. 3 it was mentioned "One copy of the list may kindly be circulated to officers whose names appear in this list for their scrutiny. Discrepancies if any, may please be intimated to this office at an early date".
The second Seniority List had no such tentative or provisional character and this is affirmed by the remarks with which it was circulated.
It said
"It is requested that these seniority rolls may piease be shown to all the AWMs on your strength (including those who have since been promoted W. Ms.) and whose names appear in these rolls".
This was therefore, the final
Seniority List which issued on 15th of June, 1980 and the Tribunal could not treat it as provisional list. For this reason the objections filed by the contesting respondents would be treated!
as representation under section 22 of the Act which stood finally disposed] by order dated 26-8-1981, leaving no scope for a furtner representation.
However, as the case has been heard on merit and there was also filed an application by the contesting respondents for condonation of delay, we would not non-suit the claim on the ground of limitation alone
The Defence Production Division has not decided the individual case of seniority. As a matter of fact it had in consultation with the Establish ment Division pointed out the law governing the question of inter se seniority of the promotees and the direct recruits, The examination of the individual cases of promotees and the direct recruits, the determina tion of the question whether the promotion was made against reserved quota or otherwise was all left to be decided by the Board, Under the
Pakistan
Ordnance Factories Board Ordinance 1961 (Ordinance Xll of 961 the Board exercises the powers of the Central Government for the
Board determining "the terms and conditions of service, recruitment, promotion, transfer posting, dismissal discharges, demotion and other disciplinary action of all officers and employees".
The final seniority list was drawn m> bv the Chief Administrative Officer in the light of General Principles of
eoioritv which was held by the Defence Production Division to be appli cable for determining seniority.
Neither the Chairman, nor the Board had drawn up the seniority list. In such a situation, a representation, and only one fucfe representation, was competent to
Chairman as th next higher authority.
He was to finally decide the points raised in the repre sentation.
He did so on 26-8-1981 as appears from the following :
'The Chairman, P. O. F. Board, has also decided that vhe case is to be processed further in the light of Estt. Division ruling on the subject, the order of seniority of AWM. Promotees vis-avis
Direct inductees, as already determined and circulated under this office No.4119/38/AWM/OF-l/G dated 15-6-80, will, therefore, stand".
The result of four discussion above is that General
Principles of
Seniority being consistent with provisions of the Act are held to have the
"orce of Rules under section 25 (2) of the
Act As the initial promotion of respondents was not against vacancies reserved for promotion in terms of
H section 9 of the Act for which alone they were eligible for promotion their promotion would be regular from the date that a vacancy reserved under the rules for departmental promotion occurred. Their appeal before the
Tribunal was also barred by limitation as against the rejection of their representation on 26-8-1981 they filed the appeal in March 1982. These appeals are, therefore, accepted, the impugned order of the Servic e
Tribunal is set aside and their service appeals before the Tribunal stand dismissed.
No order as to costs.
(TQM)
Appeals accepted
PLJ 1985 SC 186 [Appellate Jurisdiction] PLJ 1985 SC 186 [Appellate Jurisdiction] Present : muhammad hauem, CJ ; aslam riaz hussain, nasim hasan shah, zaffar hussain mirza & M S.H. quraishi JJ HAKIM MUHAMMAD BUTA and AnotherAppellants versus HABIB AHMAD and Others-Respondent! Civil Appeal No, 146 of 1976, decided on 8-1-1985 (i) Civil Procedure Code (V of 1908}-
S. 115 read with Limitation Act (IX of 1908)S. 3Limitation- Question ofOmission to decideEffect ofHigh Court - Inter ference by-Trial ourt eaching finding (on question of limitation) not sustainable in law-Appellate court, on other hand, omitting to examine correctness of finding for eason of defendants having chosen to abandon their objection to itSufficient material on re cord to establish suit being beyond timeHeld : aiver y respon dents before appellate court and omission on part of that court to decide question not to deprive High Courts of its power under S. 15 to suo motu go into question. [P. 190]G PLJ 1976 SC 159 rel. (ii) Civil Procedure Code (V of 1908)
O. VII, R, 1 IPlaintRejection of Limitation Bar ofSuit appearing to be barred by limitation from statement made in plaintHeld ; Plaint to be rejected. [P, 188jB (iii) Limitation Act (IX of 1908)
-S. 3LimitationBar ofHeld : Words of S, 3 of Limitation Act being mandatory in nature, every suit instituted after period of limitation to be dismissed (subject to provisions h of Ss. 4 to 25 of Act) even if limitation be not set up as defence, [P. 188]<4 (iV Limitation Act (IX of 1908)
S. 3 - LimitationBar ofObjection ofCourt-Duty of-Held : Matter of limitation having not been left to pleadings of parties, law to impose duty in this regard upon court itself. [P. 188]C (?) Limitation Act (IX of 1908)
-S. 3LimitationQuestion of Waiver by parties'Effect of Question of limitation not mixed question of law and fact or where apparent on face oi° recordHeld : Waiver by parties not to relieve court itself of its duty under S. 3 of ActHeld farther : Waiver by court of question of limitation not to be contemplated. [P. i$9]F PLD 1969 SC 167 re!. (vi) Limitation - Objection regardingWavier ofCourtDuty ofHeld : Limi tation being matter of statute and provisions being (also) mandatory, same not to be waivedHeM further : Such plea (even if waived same) to be (competently) taken up by party waiving it and by courti themselves. '[P. 188]Z> 1LR 38 Mad. 374 ; 40 Mad. 701 ; AIR 1940 Lafa. 75 ref. (yii) Limitation
Objection regarding Estoppel Principle of Applicability Plea (of limitation) belatedly taken involving inquiry on facts Heid : Defendant (in such exceptional case) to be debarred from raising plea of limitation on general principle of estoppel arising from his conduct [P. 188]E ILR 58 All. 313 ; PLD 1954 Pesh. 96 , PLD i957 (W.i 5 .) Kar, 258 ; PLD 3963 (W.P.) Kar. 161 & PLD 3959 Dae. 417 ref. (tiii) Limitation Act (IX of 1908) .
S, 3See : Civil Procedure Code (V of 1908)S. 115, [P. 190]6' Ch. Khalil'itr-Rehman, Senior Advocate Supreme Court, instructed by Sft. Salah-ud-Din, Advocate-on-Record for Appellants, Mr. Saeed Beg, Advocate Supreme Court, instructed by Mr. S. I nay at Hussain, Advocate-on-Record for Respondents No, 1 & 2. Date of hearing : 27-104984, judgment M.S.H. Quraishi, J -This appeal, by leave of the Court arises out of a suit for mandatory injunction instituted by the appellants. A room in property No. P. 112, Street No. 3, Lakkar Mandi, Lyallpur , had been transferred by the Settlement Authorities in favour of Rehmat Lilian, father of the appellants, and the contiguous room in the same property to Nizam Din, predecessor-in-interest of respondents 1 and 2, There were other rooms also which had been transferred to their respective occupants. The open courtyard, appurtenant to the property, had not been transferred to any one and according to the appellants it was meant for the common enjoyment of all the transferees of the property; The appellants, there fore, felt aggrieved by the construction of two rooms and two latrines on a part of the courtyard by respondents 1 and 2. Accordingly they instituted the suit on 20-3-1970 for a mandatory injunction directing the said respondents to demolish the two rooms and the two latrines and thus vacate the nuisance. Other transferees were also impieaded but most of them remained absent and were proceeded against ex pane, while respondents 2 to 28, who were minors, supported the claim of the appellants. 2. On the question of limitation of the suit which was subject matter of issue No. 3, the trial Court came to the view that the illegal construction constituted a continuing wrong within the meaning of section 23 of the Limitation Act and that, as such, the suit was within time, On the basis of this finding and the findings on other issues the suit was decreed. The appellate Court did not examine the question of limitation as respondents 1 and 2 did not challenge the finding on that issue before the appellate Court but confined their arguments to issue No. 6 which related to the question of the legality of the construction raised by the said respondent. The appellate Court held that the courtyard having not been specifically transferred to any one, it could be safely concluded that the same was left for the enjoyment of all the transferees. The appeal was accordingly dismissed and the decree affirmed. The revision filed by respondents 1 and 2 was, however, accepted by a learned Judge of the Lahore High Court who re opened the question oflimitation, observing that the question could have been considered independently of any concession made thereon by either of or both the parties and held that the suit was barred by time. He also held that the courtyard still vested in the compensation pool, and, there fore, the Civil Court had no jurisdiction to pass any order concerning the same. Consequently he dismissed the appellants' suit with costs, 3. Leave was granted to consider whether the High Court was justi fied in re-opening the question of limitation of the suit which had been given up by respondents 1 and 2 in appeal and whether the respective transfers must be construed to have been made alongwith the appurtenant rights to the common use of the courtyard. 4. The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII rule II C. P. C. The law, there fore, does not leave the matter of lim-tation to the pleadings of the parties. t imposes a duty in this regard upon the Court itself. There is a chain of {authority and a detailed discussion of the same is not necessary, to lay down ithat limitation being a matter of statute and the provisions being manda tory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitbarama v. Krishoaswaoii (I. L. R. 38 Madras 374) where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability or the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the uit was barred by limitation, it was ruled that the defendants were not estopped and it was observed that "The bar of limitation cannot be aived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "The Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it". The same Court in a ubsequent case, Ramaraurfhy v. Gopayya (I. L. R. 40 Madras 701), reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mai v. Firm Daulat Ram (A. I. R. 1940 Lahore 75) and eld that "there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived hey can be taken up again by the parties waiving them or by the Courts themselves". 5. However, in exceptional cases, a defendant has been held to be debarred from raising the plea of limitation on the general principle of estoppel arising from his conduct, This will be particularly sa if the pSeai belatedly taken involves an inquiry en facts. A Full Bench of the AUaha-f b d igh Court, in its revisional jurisdiction, in Genda Lai v. Hazari Lai (I, L. R. 58 Allahabad 313) observed "Now section 3 of the Limitation. Act is imperative and it casts a duty upon the court to dismiss an application which has not been made within the period prescribed in the schedule. The duty of the court is not dependent on an objection being raised by the opposite party. Where, therefore, the application is on the face of it barred by limitation, it is the duty of the court to dismiss it summarily and there is no occasion for calling upon the judgmentdebtor to show cause why it should not bi admitted. Where, however, the question of limitation depends on a question of fact which cannot be determined without taking evidence, the position would certainly be different," Similar view was expressed in Umar v. Afrida! (P. L. D, J954 Peshawar 96) in the words : "The question of limitation may be one of fact or of law, if former the Court is not bound to go into it unless raised by the parties, and if latter the Court is as a general ruie bound to raise and decide it, although not raised by the parties," A Division Bench at Karachi in Agha Mir Ahmad Shah ». Agh« Mir ¥s«l»b Shah [P. L, D, 1957 (W. P.) Karachi 258]. relying on the Privy Council rulings in Sbanfctr Lai Narayan Das v. The New Mofos>il Co. Ltd. (A. I. R, 1946 P, C, 97). Bbupendra Narayan Siafe« v. Rajeswar Prassd (A. I. R. 193i P, C. 162); Mudanna Virayya v. Muddan Adenna (A. 1. R, 1930 P. C. 18) and James Richard, Ransie! Skmiro v. Kunwar Nannihal (A, I. R. 1929 P. C. )58), observed that though a pica of limitation can be raised in a Court of last resort, but for that it is necessary that there must be sufficient material on the record to decide such question and (hat "if the plea of limitation in a particular case is a mixed question of law and fact, then it will be highly improper to allow the plea to be raised" This was reiterated in Ismaii v. Abdullah [P. L. D. 1963 (W, P.) Karachi 161]. The same view was also held by the Dacca High Court in Kumudini Welfare Trust v. Pakistan (P. L. D. 1959 Dacca 417), The "plea of limitation"' as held by the Sind High Court in Noor Muharstaaa r. Abdui Bamid [1984 C. L. C 23 (Karachi)], "can be allowed to be raised eves at the revisional stage if on admitted facts a case of limitation is made out". 6. It follows that where the question of limitation is not a raised question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated. This Court had in Ahsan AH v. District Judge (P. L: D. 1969 S. C. 167) clearly laid down that U was the duty of the Court to notice the point of limitation, whether the plea of limitation was raised or not, and that a waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by special or a local law. 7. Learned counsel for the appellants, however, urged that the High -art in its limited jurisdiction under section 115 C. P. C. could not $«<? 'u re-open the point abandoned by the respondents in appeal. For this said chhappas and to restore the courtyard to its former condition did not attract section 23 of the Limitation Act but Article 12(5 thereof. It is to be noticed that the respondents at the very outset in their written statement asserted that some of the disputed construction had been built by the evacuee owners of the peoperty since before independence and that the remaining portion bad also been built in 1947-48. This finds sopport not only from the evidence led by them but also by the evidence produced by the appellants theselves. Hakim Muhammad Buta, appellant No, I, ap pearing as P. W. 1 had stated ; The view taken by the High Court that the constructions were complete at the time tbe transfers were made in- favour of the parties and that, there fore, the suit was not governed by section 23 of the Limitation Acl is thus not open to exception. The ruling in Nur Muhammad v. Gaurt Stsaakar (56 I. C. 1003), relied upon by learned counsel for the appellants, ss not attracted because there the question was of discharge of rain water by the defendant on to the roof of the plaintiffs' shop, which, in the view of the High Court, gave a fresh cause of action on each occasion of the dis charge of water. On the facts of the present case, the suit instituted in 1970 was thus clearly barred by time. 9. On the other question, whether the appellants had appurtenant right to the common use of the courtyard, the learned Judge had rightly held that as the constructions were already existing at the time of transfer of the room in favour of the appellants, they could not claim such right. 10. The appeal must, therefore, fail and is accordingly dismissed, though there shall be no order as to costs, (TQM) Appeal dismissed.
PLJ 1935 SC 191 [Appellate Jurisdiction] PLJ 1935 SC 191 [Appellate Jurisdiction] Present : muhammad afzal zullah, M S H. qurais;-ii & mian BURHANUDDIN KHAN, JJ AWAL GULAppellant versus ZAWAR KHAN etc. -Respondents Criminal Appeal No. 15 P. of 1984, decided on 28-11-1984. (i) Abscondence Evidentiary value of-Held : Abscondence, in proper cases, to be treated as very important piece of evidence (as corroboration of eye-witnesses on showing conduct of accused)Such conduct, held further, not to be ignored under any law or principle. [P. 193}A PLJ 1979 SC 344 ; PLJ 1981 SC 17! : PLJ 1981 SC 183 & 1983 SCMR 978 ref. (ii) Bail-
AbsconderGrant of bail to Held : Unexplained noticeable \ abscondenoe to disentitle person to concession of bail notwithstandej ing merits of caseHeld further : Valuable evidence in such case gjhaving simply been lost or made impossible to be collected, accused not to seek reward for such conduct [P. 193JC fill) Bail Cancellation ofAbscondenceEffect ofRespondents remaining absconded for considerable period after allegedly commuting double murder with other accusedHeld : Release on bail of such respondents being against law and principle, bail granted to them to be cancelled, Constitution of Pakistan. 1973Art. 185. [P. I94j£» & E (!f) Law-
Fugitive fromRights ofHeld : Fugitive from law and courts to lose some of norma! rights granted by procedural as we!! as sub stantive law. [P. 193]B Mr. Nisar Muhammad Khan, Advocate Supreme Court with Mr. M. Qasitn Imam, Advocate-on-Record for Appellant. Mr, Munir Khan, Advocate Supreme Court with Mr. S. Safdar Htusain, Advocate-oct-Record for Respondents No. 1, 3, 5 & 6. Mr. Amirzada Khan, Advocate-Genera! (NWFP) with Mr, Nur Ahmad Khan, Advocate-on-Record for State. Date of hearing : 78-J1-1984. judgment Muhammad Afzal Zuliah, J.This appeal through special leave of this Court is directed against the order dated 11-2-1984 of the Peshawar High Court ; whereby the respondents No. 1-6 were allowed bail in a case of double murder as also attempted murdertwo victims were killed and two were injured.Leave to appeal was granted to examine the question of abscondence by the accused oa their right to sesk con:essioa of bulall tiis respon dents seem to have absconded some for a short time, others for long periods of time. One of respondents Ajab Gu! is stated to have com mitted nother murder during his abscondence. Two of the accused (not respondents) are, it is stated, still absconding. The facts of the case as summarised by the High Co art for purpose of but! are that : "Zawar Khan and seven others are charged under sections 3021 307/148/149 P. P. C. in the report lodged by Shindi Gul in Police Station Gurguri District Karak on 9-3-1983 at 5.00 P. M. According to the report the occurrence took place at 3.30 P.M. when the complainant accompanied by his father Khani Gul, his uncle Zameer Gu! and his brother Sanab Gul went to the Baithak, of Ajab Gu! accused in the village and demanded his loan from Sahib Gisl who was sitting there. At that time in the baithak of Ajab Gul, Zawar Khan, Iftikhar Ahmad, Sanam Gul, Ajab Gul, Qadir Khan, Hukam Khan accused and Naboot Shah and Ghani Khan (absconders) were also sitting. All of them were duly armed. The accused (and the absconding accused) felt annoyed over the demand of loan made by the complainant from Sahib Gui. When the complainant party left the baithak of Ajab Gu!, they were called upon by Ajab Gul and the other accused to stop whereupon they fired at indiscriminately by Qadi Khan, Bakht Khan (Noor Khan) Hukam Khan, Zawar Kha Ajab Gui, Iftikhar Ahmad, Ghani Khan and Sanam Gul, With the fire shots of the accused, the complainant and his mother msi. an Khela were injured whereas Saoab Gul and Zameer Gul were killed. The motive mentioned in the F.I.R, is the existence of Wood i'ued between the parties. Out of the eight accused, Ghani Khan and Naboot Shah are still absconders, Qadir Khan and Ajab Gul were allowed pre-arrest bad but later on their bail was not confirmed by the learned Sessions Judge, Zawar Khan surrendered to the police on 11-6-1983 and the learned counsel states that he surrendered because his pre-arrest bail was also not confirmed, Hukam Khan and Sanam Gul were arrested on 13-3.1983. During the investigation two empties of 303 bore and two empties of 7 mm were recovered from the spot. From the house search of Hukam Khan accused a 303 rifle was recovered on 13-3-1983. Similarly, from the house search of Sanam Gul accused another 303 rifk was recovered on ihe same date. Both the rifles were forwarded for the opinion of the Arms Expert alongwith the empties recovered from the spot. The opinion of the Arms Expert revealed that ihe crime empties of 303 bore have not been fired from the rifles mentioned above. One 7 mm rifle was taken into possession by the Investigating Officer on 26-6-1983 which was produced by Ajab gui accused. This rifle alongwith the two 7 mm crime empties was also forwarded to the Arms Expert for opinion. But his opinion is in Ihe negative," A learned Judge in the High Court noted several points to come to the conclusion that it is a case of blood feud wherein itnesses are interested the fact that some of them are natural and injur"" was ignored ; and, that the question whether ai! the accused participated ia the firing and if so with what intention object needed further inquiry unless the eye-witnesses account is rejected out right these aspects are well-known in the case ; and lastly, that specific roles have not been attributed in so far as the injuries to the four victims are concerned -~ with respect it has been assumed though wrongly, that such a circumstance even in a case where injurednatural eye-witness charged aSl the accused of firing, entities them to bail." Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also been ignored that in proper cases, even at the trial, abscondenoe can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing th- con duct of the accused). It has also been unfortunately ignored th't this' Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions aiso this question has been duly highlighted. They are : Rais Khan v. Said Hinif and another (PLJ 1979 S.C. 344} ; Rao Qadeer Khan v. The State (PLJ 1981 S,C. 171) ; Hayat Bakhsh and others v. The State (PLJ 198! S.C. 183} and Kh. Azhar Hussain and another r. The State (1983 S.C.M.R. 978). It is now well established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well established proposition that unexplained noticeable abscondeace disentitles a person to the concession of bail notwithstanding the merits of the case the principle being that the accused by his conduct
V| arts the investigation qua him in which valuable evidence (like re- "ies eic.) is simply lost or is made impossible to be collected (by his e Jct). He cannot then seek a reward for such a conduct (in becoming ed fugitive from law). The explanation of the learned counsel for the respondents that people some time abscond for fear of being killed in retaliation is too wide to be accepted. It will be only in exceptional circumstances that when whole material for such a situation is analysed and apprehension is treated as absolutely well founded that it might be so treated. Actually (ordinarily) the arrest and custody with the law enforcing agency furnish a better chance of protection than remaining at large and making oneself available always to the adverseries. It is aiso no defence in the present proceedings that two of the respondents surrendered themselves for bail before arrest. They did so after an abscondence of about three months. After careful consideration of all the circumstances we are of the viewthat the release on bail of the respondents was against law and principle except of Saman Gul and Hukam Khan, whose period of abscon dence is negligible in view of the possibility that in the circumstances of the case (when all had absconded) the police might aiso, have become slack in effecting the arrest immediately.The bail granted to the other four respondents namely Zawar Khan, Iftikhar Ahmad, Qadar Khan and Ajab Gul is accordingly cancelled. They shall surrender to the custody or law. If they do not, this act might be noticed against them as adverse conduct at the trial, (TQM) Order accordingly.
PLJ 1985 SC 206 PLJ 1985 SC 206 [Appellate Jurisdiction] Present : aslam riaz hussain, muhammad afzal zullah & mian burhanuddjn khan, JJ MUHAMMAD RAFIQUEAppellant versus THE STATERespondent Criminal Appeal No. 17 of 1982, decided on 9-2-1985. (i) Pakistan Penal Code (XLV of I860)
S. 302 read with Constitution of Pakistan, 1973 Art. 185 MurderOffence ofConviction for Lesser sentencePlea of CompromiseEffect ofFather of deceased compromising matter with appellant outside courtWidow of deceased having remarried, two daughters of deceased also living with their grand fatherHeld: Compromise arrived at between parties to constitute sufficient miti gating circumstance for reducing sentence of death awarded to appel lant to that of imprisonment for life. [P. 207J/4 PLJ 1982 SC 238 rel. (ii) Constitution of Pakistan , 1973-
Art. 185See : Pakistan Penal Code (XLV of I860)S. 302. [P. 207]A Mr. Mahmud Ali Qasuri, Advocate Supreme Court instructed by Mr. M. A. Qitreshi, Advocate-on-Record for Appellant, Mr. M, M. Saeed Baig, Advocate Supreme Court instructed by Mr. S. Abid Nawaz, Advocate-on-Record for State. Mr.TalibH. Rizvl, Advocate Supreme Court instructed by Syed Ali Imam Naqvi, Advocate-on-Record for Complainant. Date of hearing : 9-2-1985. judgment Aslam Riaz Hussain, J.Muhammad Ratiq son of Muhammad Hussain, appellant was tried by the learned Sessions Judge, Gujranwala, for the murder of Mjhammad Younis. He was convicted under section 302 PPC and sentenced to deatn. He filed an appeal before the High Court and the matter was also sent to it for confirmation of the death sentence. The High Court dismissed the appeal and confirmed the sentence of death. The appellant then approached this Court through a petition for leave to appeal and Jeave was granted to him by this Court on 10-3-198^. 2. The matter has come up for hearing today and we are informed that Muhammad Yousaf father of the deceased has compromised the matter with the appellant outside the Court. Tne deceased has left behind two daughters Mst, Rubi and Mst, Zubi. The widow of the deceased has since remarried. Muhammad Yousaf (father of the deceased; is, therefore, the legal guardian of the two girls and they are living with him. 3. The parties have filed a written Compromise Deed signed by the learned AORs for the parties. According to the compromise an amount of Rs. 1.50,000 was to be paid by the appellant to the heirs of the deceased An amount of Rs. 70,000 was given in advance outside the Court and the remaining amount of Rs. 80,000 has been handed over to Muhammad Yousaf in the presence of the Court. In view of tbe decision of this Court in Muhammad Bashir v. The State (PLJ 1982 S C. 238) we feel that, in the circumstances of this case, the compromise arrived at between the parties constitutes a sufficient miti gating circumstance for reducing the sentence of death awarded to the appellant to that imprisonment for life. The appeal is, therefore, partly accepted and the sentence of the appellant is reduced from death to that imprisonment for life. The appellant should also be given the benefit of ection 382-B Cr. P. C, (TQM) Sentence reduced.
PLJ 1985 SC 207 PLJ 1985 SC 207 [Appellate Jurisdiction] Present : aslam riaz hussain, muhammad afzal zullah & mian burhanuddin khan, JJ MUHAMMAD ISHAQ and OthersAppellants versus SHAH MUHAMMAD and 3 OthersRespondents Civil Appeal No. 106 of 1973, decided on 2-2-1985. (i) Constitution of Pakistan , 1973
Art. 185 read with Limitation Act (IX of 1908)S. 3Limitation Bar of Failure to examine question Supreme Court Inter ference byQuestion of limitation relatable to filing of suit beyond time before lower forumParty concerned, however, not raising such question before High CourtHeld : High Court being under no legal duty to examine question of limitation regarding institution of proceedings before lower forum without same being raised before it, Supreme Court not to (be obliged to; interfere (in matter). [P. 210]£ PLJ 1983 SC 93 & PLJ 1973 SC 30 rel. (ii) Limitation Act (IX of 1908) S. 3LimitationQuestion of Appellate or revisional forum- Raising of beforeHeld : Appellate or revisional forum (in case of Limitation Act being applicable) to necessarily examine question of proceedings instituted before itself being within (or otherwise) limita tionPlea of limitation raised before such court relating to institution of original case/suit in trial forum Held : Appellate or revisional forum to be under no legal obligation to examine question [P. 210]C (iii) Limitation Act (IX of 1908) S. 3LimitationBar ofHigh CourtExamination of question- Question of limitation raised before High Court in connection with institution of appeal before itself beyond period of limitationHeld : High Court to examine such question notwithstanding fact of bar of limitation having not been raised or pressed by other partyQues tion of limitation relatable to filing 'beyond limitation) of suit before lower forumHeld : High Court not to be obliged to examine such question unless raised before itHeld further : High Court though under no legal duty to examine question of limitation regarding institution of proceedings before lower forum without same being raised before it, no illegality to be committed in examining such question by such Court. [P. 2IO|0 (iv) Limitation
Question ofCourtDuty ofHeld: Court/Forurn, wherein matter be instituted, to be duty bound to examine question of limitation even if not raisedSame, however, not to be said about higher forums as that would also to depend upon attitude of party which wanted question of limitation viz-a-viz lower forum to be agitated at higher forumSuch party failing to agitate question before higher forum-Held : Nest higher forum not to essentially examine ques tion mo motu, [P. 209]^! & B PLJ 5973 SC 30 & PLJ 1983 SC 93 ref. (v) Limitation Act (IX of 1908) - S. 3See : Constitution of Pakistan , 1973Art. 185. [P. 210]£ Mr, Zaki-ud-Din Pal, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate-on-Record for Appellants. Rao MuhammadYousaf, Advocate-on-Record (absent) for Respondents 1 to 3. Respondent No. 4 : Ex pane. Date of hearing : 2-2-1985, judgment Muhit.nmad Afzal Zullah, J.This appeal through leave of the Court is directed against judgement dated 22ad December, 1972 by the Lahore High Court in L. P. A. No. 146 of 1966 arising out of a land settlement case ; whereby the respondents' .plea of being prior temporary allottees having been accepted they were ailowed the benefit of permanent allotment of land on their claim in preference to the appellants who had also raised similar pleas. It is not necessary to give all the details of the litigation culminating in the impugned judgement of the High Court as the leave to appeal was granted only on a limited point namely that an appeal filed by the respon dents' side before the Deputy Rehabilitation Commissioner Lands against an order of allotment made by an A. R, C in favour of the appellants, was allowed notwithstanding the fact that it was time-barred. It was, therefore, contended by the learned counsel appearing on behalf of the appellants that "the appeal before the Deputy Rehabilitation Commissioner was allowed illegally" because the Deputy Rehabilitation Commissioner Lands "neither noticed the delay aor condoned it" and further that '"this aspect of the case has not been noticed by the learned Judges of the Letters Patent Bench". conceded by him that the point was pressed in the High Court, it was also the duty of the learned Judge in the High Court himself to examine the question of limitation. Firstly because it is so required by Section 3 of the Limitation Act and secondly because the plea was raised before the trial Court, the appellate Court and also in the grounds of revision petition. No doubt one trend in old authority was that every point relatable to limitation could be urged in the higher forum even if not pressed earlier but this Court finally resolved the controversy in Khairati and 4 others v. Aleem-nd Din and another (PLJ 1973 S C 30). The ratio of the above two decisions is that it would be necessary for the appellate or revisional forum, where the Limitation Act is applicable o, examine under Section 3 of the Limitation Act whether the proceedings nstituted before itself are within limitation. But it will not be under any egal obligation like the one visualised by Section 3 of the Limitation Act to do so if the plea of limitation raised before it related to the institution of the original case/suit in the trial forum and/or the institution of any other matter before a lower forum. Thus if a question of limitation is aised ^fore the High Court in connection with the institution of an appeal before itself beyond the period of limitation it will be the duty of the High Court to examine the same notwithstanding the fact that the other party did not raise or having raised, did not press the bar of limita tion. But if the argument is that the High Court did not examine the question of limitation relatable to the filing (beyond limitation) of a suit/ case before a lower forum then the High Court would not be obliged to examine the same unless it is raised before it because Section 3 of the Limitation Act does not place any such responsibility on the High Court regarding the proceedings of the lower forum when exercising its power of review in appellate or other jurisdiction. The same would apply to the discretionary writ jurisdiction. This however, it has to be pointed out, would not mean that if in the circumstances of such a case the High Court examines the question of limitation regarding the institution of the proceedings before a lower forum without the same being raised before it, then it would be committing any illegality-the emphasis being only on the point that it is not under a legal duty to do so. If therefore it fails to do so when the partv concerned did not raise it and the argument is advanced in this Court, that the High Court should have examined it suo motu, as legal duty, it (this Court) would not be obliged to interfere. When faced with the above position of law declared in the cases of Khairati and Ghulam Muhammad the learned counsel was unable to press the appeal any further. He however requested for enlarging the scope of the leave granting order so as to include the merits of the case in addition to the question of limitation. We refused to grant the permission in view of the fact that it besides being an old apoeal, related to a settlement matter which was brought before the High Court more than twenty years ago. In the light of the above discussion this appeal fails and is dismissed but there shall be no order as to costs. (TQM) Appeal dismissed.
PLJ 1985 SC 211 [Appellate Jurisdiction] PLJ 1985 SC 211 [Appellate Jurisdiction] Present: aslam riaz hussain, muhammad afzal zullah & mian BURHANUDDIN KHAN, JJ Messrs. PAK COMPANY, Sargodha Appellant versus COMMISSIONER OF INCOME-TAX, Rawalpindi ZoneRespondent Civil Appeal Nos. 181 & 182 of 1972, decided on 13-2-1985. (i) Constitution of Pakistan , 1973
Art. 185 read with Income-tax Act (XI of 1922Ss. 23 (4) & 66 (2)Income-tax Officer Findings of fact bySupreme Court- Interference byIncome-tax Officer recording finding of fact with regard to availability of concerned books at relevant timeHeld : Supreme Court ordinarily not to interfere with such finding of fact (particularly when same be upheld by High Court). [P. 217JC (ii) Income-tax Act (XI of 192.2)
S. 23 (4)Failure to produce demanded material Effect of Income-tax OfficerAssessment on best judgment byHeld : Only wilful failure having been meaot, every failure to produce demanded material not to empower Income-tax Officer to make fair assessment under S. 23 (4) through his best judgmentCases of damage or loss by theft or otherwise, held further, not to be covered by this pro vision. [P, 218JE PLD 1973 Lahore 870 ref. (iii) Income-tax Act (XI of 1922)
S. 23 (4)Income-tax OfficerAssessment on best judgment by Held : Assessment on best judgment under S. 23 (4) never to be intended to be retaliatory vindictive, capricious or even arbitrary. [P. 218]F AIR Manual (2nd Edn Vol. VIII, p. 407 by V. V. Chitaley ref. (iv) Income-tax Act (XI of 1922)
S. 23 (4)Income-tax officer Assessment on best judgment byRelevant material not produced by assesseeHeld : Income-tax officer to make fair assessment under S. 23 (4) through his "best" judgment"Held further : Such officer to have no power to make assessment as penalty at higher amount then what, in his best judg ment, as fair act it should be. [P. 218]£> (v) Income-tax Act (XI of 1922)
-S. 23 (4)Income-tax officer Assessment on best judgment by- FindingsChallenge toIncome-tax officer while relying upon con duct of ppellant, adopting course, in peculiar circumstances of case, based on probabilitiesHeld : Findings against appellant with regard not only to aintenance of relevant books but also their availability in 1970 not to be treated as unlawful or without any authority. [P.217]B (vi) Income-tax Act (X! of 1922)
S. 23 (4)Firm-Withholding of relevant material Effect of - Relevant material proved to have been withheld by assessee firm Held ; Income-tax officer to have discretion to penalise or not to penalise assessee in connection with its registration Held further : Word "may" having been used in S. 23 (4) of Act, assessee firms not necessarily to be deprived of registration on its failure to provide material asked for, [P. 219JG 1974 SCMR 67 ref. tii) Income-tax Act (XI of 1922)
S. 23 (4)FirmWithholding of registration ofReasons for Held ; Action of withholding of registration of assessee firm being discretionary, independent application of mind for finding of guilty for such punishment to be necessary Held further ; Income-tax officer being required to adopt one of two options left open by law even in case of "best judgment" assessment, his decision to deprive assessee of its right regarding registration must be justified by way of reasons. [P. 219]H (viii) Income-tax Act (Xi of 1922) -
S. 23 (4)Firm Withholding of registration of Assessment made in "best judgment" of Income-tax officer after complying with requirements of law regarding earlier stages - Held : income-tax officer to (be competent to) proceed to examine advisibility or other wise of totally independent action (of penal character) Held further : Wide discretion having been allowed by law, no hard and fast rule to be laid down regarding circumstances in which such dis cretion not to be exercised against assessee despite "best judgment" assessment by Income-tax officer, [P, 220]K 1974 SCMR 107 ref. (ix) Income-tax Act (XI of 1922)
Ss. 23 (4) & 26 (4)Assessee FirmWithholding of registration Relevant books not produced by assessee firmIncome-tax officer not only making assessment in "best judgment'' but also imposing penalty of refusal to renew registration of firm -Held : Law not correctly followed in assuming that registration to follow as effect of proceeding exparte. [P. 221jL (x) Income-fax Act (X! of 1922) S. 23 (4) Proviso-FirmWithholding of registrationNotice to assesseeRequirement ofMandatory requirement of law regarding notice about registration as contained in proviso not followed by Income tax Officer Held : Mention of this aspect in earlier notice not to remove serious defect. [P, 220]/ (xi) Income-tax Act (XI of 1922)
S. 23 (4) ProvisoFirmWithholding ofRegistration ofNotice to assesseeRequirement ofAction being taken under sub-section (4) of S, 23Held : Proviso to he construed as applicable to case of cancellation of registration as also refusal to review registration. [P. 221]M (xii) Income-tax Act (XI of 1922)
Ss. 23, 24, 30, 33, 33-A & 34-AIncome-tax authorityOrder ofArgument regarding decision of certain authority being based on "no evidence" raisedHeld : "Evidence" having not been defined in Act general accepted principles in this behalf to be adopted. [P. 2\1}A (xiii) Income-tax Act (XI of 1922)
Ss. 23 f4) & 66 (2) See : Constitution of Pakistan, 1973 Art, 185. ' [P. 2I7]C Mr. Muhammad Amin Butt, Advocate, Supreme Court instructed by Rqna Maqbool Ahmad Qadri, Advocate-on-Record for Appellant. Mr. Muhammad Ishaq, Advocate Supreme Court instructed by Ch. Fazal-e-Hussain, Advocate-on-Record for Respondent. Date of hearing : 30-1-1985. judgment Muhammad Afzai Zullah, J.These two appeals through special leave of this Court are directed against judgment dated 12-1-1972 of the Lahore HighCourt; whereby two petitions filed by the appellant firm under Sec tion 66 (2) of the Income-tax Act, 1922, were dismissed in limine. The appellant firm had submitted Income-tax Return for assessment year 1965-66. It was not yet finalised when the Income-tax Inspector visi ted its premises in January 1970 and found the "dasti books" (parallel Books of accounts as distinguished from Regular Books of account) for the calendar year 1970. He made inquiry with regard to similar books for the calendar year 1969. The answer rendered by the firm then was that although there were some such books maintained for the calendar year 1969, after making use thereof by carrying the last entries there-from to the opening entries of such books for 1970, the 1969 books had been des troyed. The Income-tax Officer did not accept the explanation and when the occasion came for determining the income for the assessment year 1965-66 (in February 1970) he issued notices for the production of the Dasti Books assumed to have been maintained for earlier years. No such books were produced by the appellant firm. He then made an assessment under Section 23 (4) of the Income-tax Act treating it as a case of default/ failure by the assessee to produce the "dasti books". The Income-tax Officer had assumed that the appellant did maintain the said books for calendar year ending on 31st December, 1964 as well, which was admitted ly relevant for the assessment year 1965-66. The appellant's plea was that the said books were not then (in 1964) maintained by them and thus were unable to produce them. The Income-tax Officer disbelieved the position taken by the appellant firm regarding the maintenance of "dasti books" for the calendar year 1964 and consequently not only made the so-called penal assessment on "best judgment" under Section 23 (4) of the Act but also under the same provision read with Section 26-A of the Act imposed the penalty of refusal to renew the registration of the firm. The appellant challenged the assessment as well as the refusal to register, in higher forums but without any success. Ultimately the matter having been brought before the High Court under Section 66 (2) of the Income-Tax Act, the orders of the Income-tax Officer were maintained. In On the day specifier! in the notice issued under sub-section (2), or as soon afterwards as may be, the Income-tax Officer, after hearing such evidence as such person may produce and such other evidence as the ncome-tax Officer may require, on specified points, shall, by an order in writing, assess the total income of the assessee, and determine the sum ayable by him on the basis of such assessment. If any person fails to make the return required by any notice given under sub-section (2) of Section 22 and has not made a return or a revised return under sub-section (3) of the same sec tion, or fails to comply with all the terms of a notice issued under sub-section (4) or sub-section (4-A) of the same section or, having made a return, fails to comply wi ' all the terms of a notice issued under sub-section (2) of this section, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of uch assessment and, in the case of a firm, may refuse to register it or may cancel its registration if it is already registered : Provided that the registration of a firm shall not be cancelled until fourteen days have elapsed from the issue of a noti e by the Income-tax fficer to the firm intimating his intention to cancel its registration." Learned counsel took us through the reasoning and findings by the Income-tax Authorities. We have also perused the discussion on the disputed questions in the impugned judgment by the High Court. Although the learned counsel, to start with, tried to project the appel lant's case as pleaded before the Income tax Officer that no "dasti books" were maintained for the calendar year 19b4, he during the arguments gave up this position as according to him the appellant while denying the alle gation was no more interested in challenging the course adopted by the Income-tax Officer for making the assessment as it is on his "best judg ment " The concession is further justified for the reason that the learned counsel appearing for th=- appellant before the Income-tax Appellate Tribu nal has also made the following concession : "As a matter of fact, while arguing the application the learned counsel conceded that Dasti Day Books were being maintained from year to year, but that the Dasti Day Book for the Assess ment Year 1965-66 had not been preserved till the day when the assessee was called upon to produce it in the month of February, 1970." Even if we were to ignore this concession on facts, due to the dis claimer made by the learned counsel for the appellant in the grounds of the petition in the High Court, it will not be possible to hold (after going through the relevant record) that there was no evidence to show that the apoellant maintained such books for the calendar year 1964. That factual aspect has thus been settled. The controversy for further examination therefore is now confined only to two questions raised by the learned counsel for the appellant : One, The fact that the appellant had maintained the Dasti Day Book for the calendar year 1964 was not by itself the proof of the fact that it was available with the appellant in 1970 when the firm was called upon to produce the same. On this point there being no direct evidence, learned counsel argued the presumption raised against the appellant was without any material and thus unlawful. He relied in this behalf on House of Lords' judgment in Edwards (H. M. Inspector of Taxes) v. Bairstow & Harrison (36 Tax Cases 207). Two, That the operative action to be taken by the Income-tax Officer under Section 23 (4) could be in two parts : Firstly, to make assessment on the asis f "best judgment" on account of the mandate of law he had no choice not to do so ; and, Secondly, to examine, in his discretion, whether the assesses should or should not be denied the right to registration because while with regard to the first action the command of law is couch ed in the word "shall", regarding the second the word used is "may". In this case according to the learned counsel the Income-tax Officer and a!! other higher forums assumed that t e second action was also to follow ecessarily after the first action ; as if it was mandatory under the law, It being, as contended, in the nature of a punishing provision had not only to be construed strictly but also had to be applied on the basis of reasons to be recorded, by application of independent mind to all relevant factors in this behalf, after the assessment of total income on 'best judg ment". No comment having been made in this behalf by Ihe Income-Tax Authorities, it was further argued, the High Court should have rendered an answer favourable to the appellant in so far as the question of registra tion is concerned. Learned counsel has relied on: Commissioner of Income- Tax North Zone Lahore v. Warns Silk Weaving & Knitting Mills, Giijranwala (PLD 1973 Lahore 870) and J. M. Sfaeth v. Commissioner of Income-Tax, Madras [1964 (54) 1. T. R. 293]. Learned counsel for the Income-tax Department (respondent herein) has in reply, besides relying on the concession made by the learned counsel for the appellant before the Income-tax Tribunal contended that the findings of fact reached by Income-tax Authorities regarding the maintenance and availability of the concerned books for the calendar year 1964 were based upon evidence consisting of established facts from which only necessary conclusions have been drawn. According to him if it is held that the appellant did maintain ths "dasti books" for the calendar year 1964 up to 1970 it would be unimaginable to assume that the Firm would have destroyed them before i970 particularly when the Income-tax assessment had not been finalised for this entire period till, 1970. Accord ing to him contrary to what the learned counsel for the appellant assumed in this behalf (that it will be injurious to the interest of the appellant to preserve such books as, when discovered, they could be utilised against them by the Income-tax Authorities) keeping in view the common business sense, these books would have been preserved, though clandestinely, so that if need arose for income-tax purposes or other purposes including dealings with other parties/persons/partners they may be utilized. In any case according to him it being a question of fact and proper inferences having been drawn in a lawful manner this Court would not interfere with such a finding. finding. With respect, we do not agree with the learned Judges of the High Court that all the aspects of the consequential action taken under Section 23 (4) are to follow as punishment. The assessment by the Income-tax Officer on "best judgement", has in any case to be fair as it should normally be. The selection of the word, 'judeement' and that too 'best is not without significance. The Income-tax Officer has to make a fair assessment under the said provision, through his '-best judgement", simply because the relevant material has not been produced by the assesses. But he has no power to make the assessment as a penalty, at a higher amount than what, in his best judgement, as a fair act it should be. Therefore this part of his power is an ordinary power of assessment though in a somewhat different context and manner. It is on account of this underlying rationale that the Income-tax Officer has been bound down by the provision itself to make the assessment in accordance with his <: best" judgement. He has no discretion in this behalf, Before passing on to the next question is needs to be clarified that it is [not every failure to produce the demanded material that will entail the ibove consequence. Only wilfull failure is meant. For example cases of lamage or loss by theft or otherwise as held in the case of Warris Silk Testing & Knitting Mills would not be covered by this provision, It also needs to be emphasised that assessment on "best judgement" junder this ovision was never intended to be a retaliatory, vindictive, fjcapricious or even arbitrary. There is mass of case law on this point. It (will however uffice to reproduce here its summing up by V V. Chisaley in the A I.R Manual, 2nd Edition, Vol. VIII Point No. 6 (4) under the head 'Best udgement' at page 407 as follows : "Best judgment assessment.Sub-s. (4) (1) Under S 23 (4), the officer is to make an asses ment to the best of his udgment against a person who is in default as regards supplying information. He must not act dishonestly, or vindictively or capriciously because be must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose, he must be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and bis own knowledge of previous returns by and assessments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate ; and though there must necessarily be guess-work in the matter, it must be honest guess-work." It is further added that the so-called "guess work" as already explain ed cannot be otherwise than that of a 'prudent man' and that too on the basis in cases where "evidence'" is not at all available, of necessary probabilities. The cases cited by the authors in this behalf are:" 193? PC 133(138) (AIR V 24): 1LR(1937) Nag 191: 64 Ind App 102 31 Sind L R 284 1957 Pat 467 (471) (AIR V 44 C 140); 36 Pal 886 (DB; 1955 Trav-Co 67 (67) (S) AIR V 42 C 26): ILR (1954) Trav-Co 1022 (DB) 1952 Pat 235 (237) (AIR V 39): 31 Pat 246 (DB). (Case under S.10 (4), Bihar Sales Tax Act, 6 of 1944, which is analogous to S. 23 (4), Incometax ActAIR 1937 PC 133, Foil.) 1926 Lah 233 (233) (AIR V 13) (DB) 1931 Lah 87 (93) (AIR V 18): 12 Lah. 129 iFB) 193j Oudh 3% (397; (AIR V 20); 9 Luck 85, (An Income-tax Officer does not possess absolute : Income-tax Officer was illegal, It was not permuted bv Uw, as discussed above, to decide the question of registration without ; first noticing the re-action of the appellant to the notice; then making the assessment on "best jndgement" ; on a conscious finding that the appel lant had "failed" (as interpreted earlier) to comply with the notice. It was thereafter that under the proviso to sub-section (4) Section 23 be was required not to refuse renewal of the registration without a fresh prior fourteen days clear notice to the appellant intimating hi> tentative view regarding the registration. The proviso is couched in very strong negative mandate Due effect to it has not been given by the High [Court. It can safely be held that a mandatory requirement of law regardling notice about registration as contained in the proviso, was not followed 'by the Income-tax Officer in this case. The mention of this aspect in the earlier notice will not remove the serious defect. 1$ has to be emphasised that it is only after the assessment has been made in the "best judgement" of the Income-tax Officer, after complying with the requirements of law regarding earlier stages, that the Income-tax Officer would proceed to examine the advisibility or otherwise of a totalh independent action which alone is of pena! character in the real sense, fithas been allowed wide discretion by the law, depending upon the circums tances of each case, not to question registration after the "best judgement" assessment, because it is uncontrovertable proposition that he has an option 'in the matter. In what circumstances., despite "best judgement" assess ment the Income-tax Officer would not exercise this discretion against the jassessee, no hard and fast rule can be laid down. The case of Messrs [Public Medical Hall, Lyailpur already noticed can be cited as an example where the failure under section 23 (4) being the first one, was deemed aj sufficient justification for not taking any action under this section for cancellation of registration. The learned Tribunal when dealing with this question made re terete to the case of Messrs Odeon Cinema, Lahore V. The Comassssioner of Income-tax, Lahore Zone (PLD 1971 Lahore 632) in support of the viewthat there was no need for applying independent mind after the "best judgement" assessment to the question of registration and that the latter can straight-away follow the former as a necessary consequence. For the reasons already stated the Lahore judgement, in so far as it goes against the afore-expressed view in the present discussion, with respect, has not laid correct law. Coming to the present case the opinion of the learned Members of the Appellate Tribunal expressed in the order dated 13-7-1971 gives the true indication as to what the Income-tax Officer did after he found that it was a case for proceeding on his "best judgement". They observed as follows: "It was held by the Lahore High Court in the case of Odean Cinema v. Commissioner of Income Tax Lahore (PLD 1971 Lahore 632) that sub-section (4) of Section 23 of the Income Tax Act provided two penalties for deliquent assessee the first was of making on ex parte best judgement assessment and the other was of refusing registration. Once the Income-tax Officer had made out a ground for proceeding ex-parte. that was enough for registra tion, as well. no reasons have been recorded for the said exercise of dis cretion ?" Answer : Negative. Civil Appea! No, 181 ol 1972 in view of the negative answer is accordingly allowed. There shall be no order as to costs. (TQM) Order accordingly.
PLJ 1985 SC 239 (Appellate Jurisdiction PLJ 1985 SC 239 (Appellate Jurisdiction! Present : nasim hasan shah, shapiur rahman, zapfar hussain mirza & M.S.H. quraishi, JJ Ch. MUHAMMAD KHALILAppellant versus SECRETARY, Ministry of Defence and Another Respondents Civil Appeal No. 62 of 1981, heard on 2.7-1-1985, (i) Constitution of Pakistan , 1973
Art. 212 read with Service Tribunals Act (LXX of 1973)S. 4 & Civil Service RegulationsCSR 465-8 Pre-mature retirement Intimation by civil servant forWithdrawal ofRefusal ofCivil servant submitting written intimation for pre-mature voluntary re tirement with effect from certain dateSubsequently, such servant applying permission to withdraw such intimation Department, however, rejecting such request and ordering his retirement according to his intimationHeld. Department acted strictly in accordance with relevant rule in refusing to permit withdrawal of intimation given by appellant for his pre-mature retirementHeld further : No illegality committed by Departmentin giving effect to such intimation, [P. 243] D PLD 1973 Qta, 4 distinguishtd. (it) Civil Service Regulations
CSR 465-BPre mature voluniary retirement Intimation for Withdrawal ofPerson intending to retire submitting written inti mation to competent authority indicating date on which he intends to retireHeld : Intimati m once submitted to be given finality and not to be liable to be modified or withdrawnHeld further : Option to retire though remaining intact, date of retirement not to be allowed to be withdrawn. [P. 247M (Hi) Civil Service Regulations
-CSR 465-BPre-mature retirement Intimation forRevocation f or Civil servants bringing end to his service tenure unilaterally by giving intimation for pre-mature retirementHeld : Such servant to have no power to revoke such intimation in view of express bar embodied in regulation. [P. 242|C (it) Ci?il Servant-
Service ofMaster and servantLaw ofApplicability ofHeld : Civil servant to hold office during pleasure of appointing authority subject to statutory limitations on exercise of pleasureHeld further: Service of such servant being governed by statutory rules, law of master and servant not to regulate his serviceSuch service in effect and practice (now) being statutory tenure under constitution and governed by rules framed by competent authority, rights, of civil servants to be strictly construed in accordance with relevant rules of service, [P. 242JB (?) Civil Service Regulations
CSR 465-BSee : Constitution of Pakistan , 1973 Art. 212. [P. 243 ]£> (vi) Service Trbunals Act (LXX of '973)-
S. 4See : Constitution of Pakistan , 1973Art. 212. [P 243 } D Mr. M. S. Siddiqui, Advocate Supreme Court, instructed by Khan Imtiaz Muhammad Kfian, Advocate-on-Record for Appellant. Mr. Munir A. Sheikh, Deputy Attorney General instructed by Ch. Akfttar A/i, Advocate-on-Record for Respondents, Dates of hearing : 26 & 27-1-1985. judgment Zaffir Hussain Mirza, J. This appeal by special leave arises out of order dated 8-6-1980, passed by Service Tribunal, Islamabad , whereby the appellant's appeal was dismissed. The appellant entered service with the Central Government General Headquarters, Defence Department, on 7-6-1948. On 29-5-1978, when he was osted as Assistant, G.H Q. Rawalpindi, he gave notice addressed to the Chief Administrative Officer, General Staff Branch, General Headquarters awalpindi or premature voluntary retirement with effect from 1-11-1978, on completion of 30 years qualifying service which was due to be completed on 17-6-1978. owever, n 24-6-1978, he re quested for being permitted to withdraw the said intimation for retire ment which was rejected by the Chief Administrative Officer on 2-7-1978. The premature requirement of the appellant was ordered according to his intimation with effect from 1-11-1978 and he was granted leave prepara tory to retirement s admissible under the Rules. Being aggrieved by the rejection of his request for withdrawal he appealed to the competent appel late authority but his appeal was also ismissed on 7-12-1978. 2. The appellant then went in appeal before the Service Tribunal, Islamabad , under section 4 of the Service Tribunals Act, 1973. Out of the three learned embers of the Service Tribunal, two took the view that the option "exercised by the appellant in this case reached the finality on the date of its submission." eferring to the amended Regulation 465-B of the Civil Service Regulations, the learned two Members held that the Government were well within their ight not to accept the withdrawal, which stipulated that such option once submitted would be final and not capable of modification or withdrawal. The learned ember wrote a dis senting opinion and reached the opposite conclusion that regulation 465-B did not contemplate that the right of retirement once exercised becomes final or irrevocable. The appeal was, however, dismissed in accordance with the majority view of the impugned order, 4. Leave was granted by this Court to examine the correctness of the rival opinions formed by the majority of the Members of the Tribunal and th« dissenting Member, Before us reliance has been placed on the following two Regulations of the Civil Service Regulations which may be reproduced : "CSR 465-A : For officers mentioned in Article 349-A the rule for the grant of retiring pension is as follows : (1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years or in the case of officers of Central Service of the Forests, Geological Survey, Public Works, Railway and Tele graph Departments and any other overed by Article 635 who entered the service before the 6th day of December, 1952, not less than twenty years, (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years qualifying service or more. CSR 465-B : For officers referred to in Article 349-AAA, the rule for the grant of retiring pension is as follows : (1) A retiring pension is granted to an officer who exercises his right to retire from service any time after completing twenty-five years qualifying service. (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years' qualifying service. This clause does not apply to a Judge of the Supreme Court or of a High Court or the Comptroller and Auditor General of Pakistan or an officer who has attained the age of fifty-five years. Note 1. Subject to the provisions of the Essential Services (Maintenance) Act, 1952 (LiII of 1952), an officer, other than an officer against whom a departmental proceeding, has the right to retire from service after completing twenty-five years' qualifying service ; provided that an officer who intends so to retire shall, at least three months before the date on which he intends to retire, submit written intimation to the authority competent to fill the appointment held by him at the time of submitting that intimation indicating the date on which he intends to retire. Such an intimation, once submitted, shall be final and shall not be allowed to be modified or withdrawn. Note 2. Government has the right to retire any officer after he has completed twenty-five years' qualifying service." 5. The case of the Department is that in terms of the clear mandate of the aforesaid rule 465, Note 1, the appellant was not entitled to with draw foe intimation once given by him under this rule in exercise of his right to retire prematurily on completion of 25 years' qualifying service. The crucial words on which reliance has been placed are : Such an icnmatioB. once submitted shall be final and shall cot be allowed to be modified or withdrawn," The learned dissecting Member of the Tribunal, in holding that such intimation can be withdrawn until it is accepted. construed the prohibition or modification or withdrawal to be confined only to the 'date'of the intended retiremeol in the communication sub mitted by an officer. He held that the date of retirement once mentioned in the intimation was not iiable to be altered or modified, so that might create administrative complications and dislocation. But in his view there appeared to be no embargo on the right of the officer concerned to charge bis mind and withdraw the intimation as a whole for availing premature retirement. This he supported on the proposition that the writ conferred by the rule upon a civil servant to unilaterally retire from service upon completion of 23 years' qualifying service, implied the right to undo the same and recall his action before the acceptance of his option to retire. The reasoning adopted by the learned Member does not appear to us to be sound and tenable. In holding that the bar contained on modification or withdrawal in the rule under interpretation only relates to the date, the learned Member over looked the important word "withdrawn" occurring in the rule. On a plain reading of the relevant part of the rule it is clear that the intimation once submitted has been given finality and is not liable to be modified or withdrawn. There would be no question of with drawing a date of retirement, while allowing the option to retire to remain intact. The terminus a quo fixed by the learned Member for the right of withdrawal upto the time of acceptance of the intimation is also a pro position not sustainable in the very nature of the right conferred on an officer under rule. The motion of acceptance may be relevant in the case of resignation governed by Regulation 465-A or in ordinary case governed by the general law of master and servant, because once the resignation is accepted, the relationship ends but as long as the resignation has not been accepted, the servant continues to be in service and would be entitled to withdraw his resignation. However, in the case of government servant it is well settled that the general law of master and servant will not regulate the service, which will be governed by the statutory rules. A civil servant holds office during the pleasure of the appointing authority subject to the statutory limitations on the exercise of pleasure. It is in effect and B practice now a statutory tenure under the constitution governed by the rules framed by the competent authority. The rights of civil servants are, therefore, strictly construed in accordnce with the relevant rules of service. The right to bring an end to the tenure by voluntary retirement has been gifeti under Rule 465-B and is regulated by its terms The read ing of this regulation as a whole as it is stood at the relevant time in this case, leaves no measure of doubt that upon giving the intimation for pre mature retirement, the civil servant bring an end to his service tenure unilaterally which he had no power to revoke, in view of the express bar embodied in the regulation. 6, It has, however, been contended that Note I to Regulation 465-B, in so far as it puts a clog on the withdrawal of the intimation for retire ment, is ultra vires he main regulation, as the Note is in the nature of a proviso to the main enacting part of the regulation. We are unable to see any force in this contention. To our ind othing in the note partakes of the nature of a proviso because it does not take any particular case out of the purview of the main regulation. On the contrary it rescribes the mode of the exercise of the right to obtain retiring pension after the requisite period of qualifying service has been completed which has een iven in ckuse (1) of the main regulation. It may even have the scatus of independent enacting provision conferring the right upon a government fficer to retire from service under the prescribed conditions. It will be more appropriate to say that the right to such premature retirement has been made contingent pon the fulfilling of certain procedural requirements, namely, thit at least three montns prior notice should be given from the date of intended retirement in writing to the authority competent to fill the post held by such officer. H is in the context of these requirements that the embargo has been placed upon the modification or ithdrawal of the intimation. In refusing to permit with-l drawal of intimation given by the appellant for his premature retirement,!- therefore, the department acted trictly in accordance with the relevant! rule arid committed no illegality in giving effect thereto ?, Certain judgments were cited on behalf of the appellant but it is not necessary to deal with them here as none judgments of them seem to be relevant to the matter under considerrtion. However, we may refer to Abdul Gbani v. Government of West Pakistan (PLD 1973 Qaetta 4) which relates to an application for premature retirement by a civil servant in the provincial police service In this case the learned Judges held that the memorandum dealing with the retirement pension which was couched in identical terms as Note 1 to Regulation 465-B in this case, placed no obstacle in the way of the civil servant to withdraw the intimation for retirement and. therefore, the action of the government refusing such withdrawal was illegal but the main consideration that prevailed with the court to rule as stated was that the memorandum upon which reliance was made by the government was not rule and had, therefore, no statutory effect. Clearly the case is distinguishable on facts, since, in the present case, the reliance is placed upon a statutory rule which has the force of law. 8. In the result this appeal fails aad is accordingly dismissed but with no order as to costs, (TQM) Appeal dismissed.
PLJ 1985 SC 243 [Appellate Jurisdiction] PLJ 1985 SC 243 [Appellate Jurisdiction] Present : muhammad apzal, zuluah, nasim hasan shah & mian BURHANUDDIN, JJ MUHAMMAD SADIQAppellant versus SADIQRespondent Criminal Appeals No. 100 & 101 of 1984, decided on 12-1-J985. Constitution of Pakistan , 1973 Art. 185 read with Criminal Procedure Code (V of 1898)Ss. 497 & 498Bail Grant ofAbscondeoce of accused Effect on right to obtain bailRespondents allegedly remaining absconded for about six monthsSessions Judge, however, granting bail to them without considering effect of their abscondence on their right to obtain bail -Held : Orders of Sessions Judge as also those of High Court to be liable to be set aside. [P, 25l]F (ii) Constitution of Pakistan , 1973
-Art. 185 read with Criminal Procedure Code (V of 1898)~Ss. 49? & 498BailGrant or refusal of Order of - Supreme Court Interference byHeld : Supreme Court normally not to interfere with discretion exercised by lower courts. [P. 252]G (iil) Criminal Procedure Code (V of 1898}-
S. 497 (2)BailGrant ofFurther inquiry - Ground of No reasonable grounds existing for believing accused to have committed non-bailable offence Held : There being sufficient grounds for further inquiry into his guilt, bail to be allowed to accused. [P. 249]A (iv) Crinriaal Procedure Code (V of 1898)
S. 497 (2)Bail Grant of Further inquiry Ground of Reasonable grounds existing for believing accused having not committed non-bailable offenceHeld : Normally accused not to be tried for having committed any such offenceHeld further : Jn case of sufficient grounds for further inquiry into his guilt existing, law to entitle accuied to bail during pendency of trial. [P. 249}B (v) Criminal Procedure Code (V of 1898)-
S. 497(2)BailGrant of Further inquiryGround ofHeld : In determining whether power under S. 497 (2) exercised properly or not by court, substance rather than form in which order couched to be seen. [P. 250]C. (Vi) Criminal Procedure Code (V of 1898) - .
S 497 (2)BailGrant ofFurther inquiryGround ofReason able grounds for belief regarding accused having not committed non-bailable offence existing in ase Sessions Court also finding further inquiry into guilt of accused still necessaryCorrect formu lation for expressing its intention, however, not employed by ^ such) courtHeld : Order (granting bail) not to be bad on ground of phrase "further inquiry" occurring in sub-section (2) of S. 497 Cr. P. C. aving not been co'rrectly construed by (such) court. [P. 25 l]D (vii) Criminal Procedure Code (V of 1898) _Ss. 497 & 498 - BailGrant of Abscondence-Effect ofHeld : Person becoming fugitive from law to lose some of normal rights granted to accused persons by procedural as also substantive law and to disentitle himself to concession of bail notwithstanding merits of case (unless period of abscondence be satisfactorily explained. IP. 251J/T PLJ 19SJ SC 139 & PLJ 1985 SC 191 rel. Mr Muhammad Akbar Khan, Advocate Supreme Court (absent) and Ch, Akhtar Ali, Advocate-on-Record for Appellant. Agha Aziz Ahmad, Advocate Supreme Court instructed by Mr. Imtiaz Muhammad Khan, Advocate-on-Record for Respondent No. 1. Mr. Bashirullah Khan, AAG (NWFP) for State. Date of hearing : 12-1-1985. judgment nasim hasan shah, J.This ojder will dispose of Criminal Appeal No. 100 of 1984 and Criminal Appeal No. 101 of 1984, as they relate to the same transaction aad have been disposed of by & common judgment of the High Court. The facts, which form the background, are that a case was registered on 20 7-1982 under Section 302/148/149 PPC at Police Station Darbaad, District Mansehra ainst Sadiq son of Faiz AH (respondent No. 1 in Cr, Appeal No. 100 of 1984), Muhammad Daud son of Ali Bahadur (respon dent No 1 in Cr. Appeal No. 101 of 1984) and 4 others in connection with the murder of Muhammad Zaman the cousin of Muhammad Sadiq son of Sher Zaman, the appellant herein. Despite the registration of the case against them neither Sadiq (respondent No. 1 in Cr. Appeal No. 100 of 1984) nor Muhammad Daud (respondent No. I in Cr. Appeal No. 101 of 1984) could b<". immediately arrested, as they were not available in the locality and wjre arrested only some 5/6 months later, on 25-1-1983. Both of them applied for bail separately, after being arrested, before the Illaqa Magistrate. The said applications for bail were, however, dis missed by him by his orders, passed on 29-1-1983 and 30-4-1983 respectively. The learned M igistrate in his order dated 29-1-1983 rejecting the bail application of Sadiq observed that the said accused was involved in a murder case wherein the P. Ws had connected him with the offence and "above all the conduct of the accused-petitioner is that he remained absconder and was arrested about six months after the occurrence". In his order rejecting the bail application of Muhammad Daud which was passed on 30-4-1983, the learned Magistrate observed that he was charged directly for firing at Muhammad Zaman deceased and the offence was punishable with death or life-imprisonment. Both the accused then applied through separate applications, for bail before the learned Sessions Judge, Mansehra. The bail application of Sadiq (respondent in Cr. Appeal No. 100 of 1984) was disposed of on 20-2-1983. On his behalf it was submitted before the learned Sessicmi Judge that the role of killing the deceased was attributed to him and the absconding co-accused by firing at him effectively but it was yet to be determined at trial as to which one of them was actually responsible for his murder as only one bullet injury was found on him ; that the medical evidence and the site plan did not fully support the prosecution version ; that the P. Ws., who allegedly witn«ssed the occurrence, were closely re lated to the deceased and that view of the plea of alibi the concession of bail should not have been refused to him. On the contrary, it was argued person require further enquiry to connect kirn with ike commission of the offence as in the present case, bat! i? to be allowed to such a person." (underlining is ours). These two appeals, with leave of this Court, are directed against the last-mentioned judgment passed on 21-3-1984 by the High Court. This Court, while granting leave to the appellant, observed :--- "Apart from the question whether the terra "further inquiry" occurring in sub-section. (2) of section 497 Cr. P C has been correctly construed, the question also of the .:,ifeet of abscondence of the accused for a period of about six months, on their right to the grant of bail, requires to be considered," This Court has had the opportunity of examining both these questions in a case recently decided by it, namely Ibrahim v, Hayat Gal and another (Cr. Appeal No 16-P of 1984) where the meaniog of he phrase "further inquiry" occurring in sub-section (2) of Section 49? Cr. P C, as also the effect of abscondence while considering the question of bail in non-bailable offences, have been discussed. So far as the scope of the phrase "'further inquiry" is concerned its true meaning isexp'ained as follows ,- "The relevant provision of Section 497 in this beha!f reads as follows : "497, When bail may be taken in case of oon-baiiaqle offence (1) .......................................................................................................... (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shalL pending such inquiry, be released on bail, or, at the dis cretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that "there are no reasonable grounds for believing that the accused has committed a non-bailable offence". Without such finding by such officer or the Court the accused would not be released on ground of further inquiry under sub-section (2). And similarly if such a finding is recorded the accused cannot be denied Ibe right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the pre-requisite finding. That being so the respondent could not be released on bail on ground of so-called 'further inquiry under sub-section (2) of Section 497 Cr, P. C." As for the effect of abscondence, the Court referred to its earlier decision in Awsl Gvtl v. Zawar Khan etc. (Criminal Appeal No. 15-P of 1984 decided on 28th ovember, 1984) in which the law in respect of persons who become fugitive from law was laid down. Herein, it was observed that -'a fugitive from law nd Courts loses some of the normal rights granted by the procedural as also substantive law" and it was added that "unexplained noticeable abscondence isentitles a person to the concession of bail notwithstanding the merits of the case" ; and went on to observe that : "in some rare cases notwithstanding abscondence the accused might be released on bail : for example, when the accused is a woman, a child or a.sick and infirm person or when he otherwise becomes entitled to bail as of right under sub-section (2) of Section 497 Cr. P. C. and or the so-called abscondeace is satisfac torily explained by the accused so as to establish that in reality it did not amount to abscondence". It is in the light of the law laid down by this Court in the above decisions that the effect of the abscondence by the respondents on their right to obtain bail will fall for consideration. As regards the first question whether the term "further inquiry" has been correctly construed by the learned Judge in the High Court is con cerned we note thataccording to. him "ordinarily, bail is not allowed in a murder case especially in the case when the allegations against the person mentioned in the F.F.R. if left unrebutted render him liable to a sentence of death or transportation for life. However, if the allegations against a person require further enquiry to connect him with the commission of the offence as in the present case, bail is allowed to such a person." This enunciation of the Saw, evidently is not in accord with the inter pretation of this phrase given by this Court in the afore-mentioned case of Ibrahim v. Hayat Gui & another ((Cr. Appeal No. 16-P of Iy84) PLJ 1985 SC 129]. Herein, as it has been seen, it is observed that bail undersub-section (2) of Section 497 Cr. P. C. is o be allowed only if the prior condition is fulfilled, namely, that the officer incharge of the Police Station or the Court taking cognizance of the matter comes to efinite conclusion on consideration of the entire material that "there are no reasonable ground for believing that the accused has committed a nonbailable ffence" and ths "furttier inquiry", that is necessary, is only with respect to the question whether thjre are suffi isnt grounds for believing that the accused his ommitted a non bailable offence. Thus, the view taken by the learned single Judga on this question that bail will not be allowed in a case when the allegations against he person mentioned in the F.I.R., if left unrebutted, render him liable to be sentenced to death but neverthe less may be allowed bail if fur'her inquiry is necessary to onnect him with Now reported as PLJ 1985 SC 19!. the commission of the offence cannot be accepted as correct. As pointed out already, bail is to be allowed only where no reasonable grounds exist for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt. Normally, if reasonable grounds exist for believing that the accused has not committed a non-bailable offence he should not be tried at all for having committed any such offence But if however, sufficient grounds for further inquiry into his guilt exist there would then be some justification for putting him on B trial for the offence for which he is charged but in such an eventuality the law entitles him to bail during the pendency of the trial, subject, of course, to cancellation of bail under section 497 (5) Cr, P. C. on availability of the evidence or other sufficient cause. It is urged, therefore, by the learned counsel for the complainant that as the provisions of sub-section (2) of Section 497 Cr. P. C, have not been properly construed by the learned Judge in the High Court the respondents have unjustifiably been granted bail under sub-section (2) of Section 497 Cr. P. C. by him, which may be cancelled. Agha Aziz Ahmad, learned counsel for the respondents, however, submitted that the High Court was justified in granting bail to the respon dents and referred to Jaffar & others v. The State (1980 SCMR 784) in support of this submission. In that case, the material on the record did not show as to which of the accused had caused the fatal injury "leaving room for consideration regarding common intention of other accused to kill the deceased". In these circumstances, it was held that it was a case of'-further inquiry under Section 497 (2) Cr. P. C." Learned counsel also relied upon certain other judgments of this Court in which the phrase "further inquiry'' was construed in the same sense, in which the learned Judge in this High Court has construed this phrase in his impugned judgment. In this connection, attention was invited to KhaJil-ur-Rehman v. The State (1979 SCMR 168) and emphasised the following passage occurring in the judgment, "These facts would show that it is not just a case of a counter version having been put across by the petitioner's father for the purpose of obtaining bail, but that there was some foundation for the allegations made by him. This being the case, the learned Additional Sessions Judge was not wrong in allowing bail to the petitioner on the ground that the counter version put forward by him and his father indicated that there was need for further inquiry within the meaning of sub-section (2) of section 497 of the Criminal Procedure Code." He also drew our attention to the case of Falak Sher and another v. The State (PLJ 1979 SC 352), especially the following observations made therein : 'Since the prosecution version in its very nature leaves much to be enquired into and the case being of a further inquiry, the order of the High Court which ignored this fundamental characteristic of the case cannot be maintained. It is to be pointed out that section 497 (2) of the Cr. P. C, itself authorised grant of bail in cases of further inquiries."Mr Bashirullah Khan learned Assistant Advocate-Genera!, N.W.F.P., on the other hand, submitted mat bail could not be granted under bection 49"? (2) of the Cr. P. C. in a non-bailable offence when the final report under section 173 has already been submitted before the trial Court. In this connection, he relied upon Ch. Muhammad Khan v, Sanaullah and another (PLD 1971 S. C. 324), wherein the learned Judges observed : "The remark by the learned Judge that "the evidence on the Police record ex-facie shows that the case of the petitioner re quires further inquiry" was equally unwarranted. The final report under section 173, Cr. P. C having been submitted in the Court of the Inquiry Magistrate and the statements of a number of witnesses recorded by him, section 497 (2) Cr. P. C. was not attracted. There is no other provision in law under which a further inquiry could be made by the police." The above decision was followed in Akbar Ali v. The State (19?9 S.C.M.R. 132), wherein it was held that Ihe final challan having already been submitted to the trial Court basi under sab-section (2) of Section 497 Cr. P. C, could not be allowed. The last mentioned judgment merely follows the dictum in the case of Ch. Muhammad Khan v, Sanaullsh and another (PLD 197! S. C. 324} and this is so stated. We may, howsver, point out with the greatest respect that while taking the view, which has been expressed in these judgments, the learned Judges appear to have over-looked the words to the effect "if it appears to such officers or Court at any stage of the investigation, inquiry or trial, as the case may be .............. ............... " (uuderiining is by us), occurring in sub-section (2) of Section 497. Hence, it is not possible, speaking with the utmost respect to adhere to the view taken in these judg ments because in our humble opinion no such limitations to the exercise of powers of granting bail by the Court exist under sub-section (2) of Section 497 Cr. P. C. Coming to the contention that the learned Judge in the High Court has not properly construed the provisions of sub-section (2) of Section 497, Cr. P. C. which is evident from a perusal of this Court's recent judgement in Ibrahim v, Hayat Gul and another (PLJ 1985 SC 129) suffice it to say that a perusal of the judgements relied upon by the learned counsel for the respondents and some other judgements delivered on the subject shows that Courts while allowing bail under Section 497 (2) Cr P. C. have not been pleased to use such language as may exactly conform with the terms of sub-section (2) of Section 497 Cr. P. C. But a careful perusal of these judgements also reveals that bail was allowed only in those cases where the prior condition, namely, that on consideration of the entire material there was no reasonable grounds for believing that the accused had committed a non-bailable offence was fulfilled, but further inquiry into his guilt was still necessary. Thus, in determining whether the power under Section 497 (2) Cr. P. C. has been exercised properly or not by a Court it will be the substance rattier than the form ia which the order couched that will have to be seen. nevertheless refrained from interfeiing with the exercise of discretion of the High Court to the effect that the respondents are entitled to bail, subject, of course, to a satisfactory explanation by them of their alleged abscondence. The upshot is that these appeals are allowed. The orders of the learn ed Sessions Judge and those of the High Court granting bail to the respon dents in both the appeals are set aside and the bail granted to them is cancelled. But the accused will be at liberty to move the learned Sessions Judge, Mansehra again for bail and if they can satisfactorily explain their alleged abscondence before him. they shall be entitled to the grant of bail, by him. (TQM) Appeals allowed.
PLJ 1985 SC 252 [Appellate Jurisdiction] PLJ 1985 SC 252 [Appellate Jurisdiction] Present : S. A, nusrat & mian burhanuddin khan, JJ Messrs ASLAM SAEED & COAppellant versus Mesrs TRADING CORPORATION OF PAKISTAN LimitedRespondent Civil Appeal No. K-107 of 1972, decided on 17-12-1984. (i) Arbitration Act (X of 1940) "
S. 30 read with Contract Act (IX of 1872) Ss. 73 & 74 and Constitution of Pakistan , 1973Art. 185Breach of contractDa mages forAwardChallenge toAgreement containing no stipula tion for award of damages on re-sale of goods or otherwise Arbitrator, however, awarding damages on basis of difference between contracted price and price received on resale of defaulted quantity of rice Held : (No express stipulation having been provid ed in written agreement) damages awarded on such basis not to be permissibleHeld further : All contingencies having been covered in relevant default clause of agreement, principle of exclusion applied by High Court on basis of maxim expressio unius zst exc/usio alterius not to be attracted in facts and circumstances of case. [Pp. 258 & 259}A &B PLJ 1973 SC 193 & PLD 1965 SC 489 ref. (ii) Arbitration Act (X of 1940)
S. 30AwardError on face of--Agreement Taking into con sideration forCopy of agreement also filed alongwith statement of claim on behalf of respondents eld : Court to be entitled to look into such document. [P. 260]C (1959) 2 Lloyd's Reps 292 & AIR 1923 PC 66 ref. (iii) Arbitration Act (X of 1940)
S. 30 read with Contract Act (IX of 1872) Ss. 73 & 74 and.Constitution of Pakistan , 1973 Art. 185 Award Grant of damagesChallenge toNo provision of damages found in aslam saebd & Co. v. trading corpn. of pakisian SC 253 (S. A. Nusrai, J) agreementHeld : Finding of High Court that damages to be permit ted by law even outside scope of (relevant clause of) agreement not to be agreed with. [P. \6l]D (iv) Arbitration Act (XX of 1940)
S. 30Breach of contractDamages tor- Grant ofAwardChal lenge toNo provision made for award of damages in default clause of agreement- eld: All contingencies including cancellation of agree ment being well within contemplation of parties at time of drawing of agreement, arbitrator not to be ompetent o import agreement for award of damages (when none in fact existed in. contract itself) Held further : Respondents not to be entitled to award of damages in xcess of that provided in default clause. [Pp. 261 & 262JE & <7 (r) Arbitration Act (XI of 1940)
S. 30Words "otherwise invalid"Meaning of Held : Words '^otherwise invalid" being not ejusdem generis with other cases men tioned in S. 30, same to be meant to include all cases of invalidity on grounds oilier than those mentioned. [P 263JJ (vi) Contract Act (IX of 1872)--
S. 74Breach of contractCompensation for Held ; Difference existing in English Saw between liquidated damages and penalty not to be recognised (under S. 74). [P. 26|]F (vii) Sale of Goods Act (III of 1930)
S. 54ResaleDamages forNoticeRequirement ofNo notice under S. 54 of Act served prior to resale of uniitted quality of rice Respondents, however, inviting tenders and (even) appellant parti cipating in sameHeld : Resale to be illegal in absence of such notice. [P. 262]H PLD 1965 SC,489 ref. (viii) Contract Act (IX of 1872) -
Ss. 73 & 74 See : Arbitration Act (X of 1940) S, 30. [Pp. 258 & 259]^ & B (ix) Constitution of Pakistan , 1973) Art. 185See : Arbitration Act (X of 1940)S. 30.[Pp. 258 & 259M & B Mr. S. Sharifuddin Pirzada, Senior Advocate Supreme Court instruct ed by Mr. Yousuf Rafi, Advocate-on-Record for Appellants. Mr. Mamoorul Arifem, Advocate Supreme Court instructed by Mr. 4. Aziz Dastgir, Advocate-on-Record for Respondents. Date of hearing : 29-10-1984. JUDOMENi S. A. Nusrat, J.--This appeal by leave of this Court is from the judgment and order of the erstwhile High Court of Smd and Baluchistan, Karachi , dated 10thMay, 1972, arising out of arbitration proceedings. 2. The brief facts of the case are that under an agreement, dated ilth January, 1969 entered into between the respondents, Trading Corporation of Pakistan , and the appeiiaats. the latter agreed to purchase 30,000 tons of Basraati nee from the former for the purpose of export. The appellants, however, lifted only 15,146,83 metric tons of rice leaving a balance of about 14,853.17 metric tons unlifted The respondents resold the balance uniifted quantity of rice alleging breach of contract on the part of th: appellants and in this proces claimed to have sustained loss. The allega tions and the claims of the respondents were denied by the appellants which gave rise to a dispute between the parties. The respondents there upon invoked the arbitration clause contained in the annexure to the agree ment, dated llth February, 1970. In the circumstances, the parties agreed to appoint Mr. S. R. Karim, Director-Genera!, Department of Investment Promotion and Supplies, Government of Pakistan to act as the sole arbitrator in the matter. The submission so made to the arbitrator was in the following terms : "We do hereby agree to the appointment of Mr, S. R. K.anm, D. G. I. P. & S., as sole arbitrator for the determination of the disputes between the parties. The appointment of the sole arbitra tor has been made in terms of clause X of Annexure 1 of the above referred Agreement between the two parties. The parties can submit their respective claims and counter-claims before the aforesaid sole arbitrator and he will decide the disputes so raised by the parties and his award shall be final and binding on both the parties above-named." 3, The arbitrator entered upon the reference and called upon the parties to file their claims and objections. On the basis of the respective contentions of the parties the following issues were framed by the arbitrator : "(1) Whether the claimants (T. C.) are competent and the proper party to prefer any claim against the respondents ? (2) Whether time was essence of the contract between the parties hereto. If so, to what effect ? (3) Whether the original period of contract was extended beyond Kith February, 1970 and up to !8th February, 1970 and/or upto 20 th March, 1970. If so to what effect ? (4) Which party to the contract has committed its breach and what sbal 1 be the effect of such breach ? (5) Whether the claimants are competent to claim any sums from the respondents, by way of difference in price and interest (in view of clause 6) of the contract between them. (6) Whether the claim of the claimants requiring payment in rupees from the respondents is maintainable in law ? (7) Whether the contract between the parties was frustrated, and if so, to what effect ? (8) Which party to the contract is entitled to receive damages from the other party. On what account and in what sum or sums ? (9) Cost registered as a suit. The objections to the award filed by the respondent-. were dismissed by the learned High Court as per impugned judgment, the award was made the rule of the Court, and a decree in terms thereof was passed allowing interest at 9% from the date of the decree till realisation of the decretai amount. Costs of the proceedings were also awarded to the respondents, 6. Leave to appeal was granted from the above judgment of the High Court, inter a/fa, to examine the following contentions raised on behaif of the appellants Ai clause 6 of the agreement between the parties specifically provided for breach of the contract, the arbitrator was bound to apply the said particular provision, (2) he failure to enforce the above clause by the arbitrator was an error on the face of tbe record which called for interference by the High Court. (3) That prior to resale of unlifted quantity of rice a notice under section 54 of the Sale of Goods Act was required so have been served on tbe appellants in the absence of such a notice the resale was illegal, (4) That in the absence of any provision for awarding of damages in clause 6 of the agreement, the award of damages by the arbitrator was illegal because he was not competent to import an agreement where none existed in this respect. 7. We heard Mr, Sharifuddin Pirzada, learned counsel for the appellants and Mr. Mansoorul Arifeen, learned Advocate for the respondents. 8. It was contended by the learned counsel for the appellants that the award given by the Arbitrator was a speaking award because specific references to the terms of the agreement are made in the award and the Arbitrator has given his finding in relation thereto which is borne out from the following : "(I) It was held that the time was the essence of the contract and the appellants have committed breach of the contract, (2) The question of difference in the contracted and resale price was specifically raised as a point for consideration which,was worked out and award to tbe respondents. (3) The Call Deposit Receipts (C. D, Rs.j amounting to Rs. 3,42,900 were allowed to be retained by the respondents and to be set off against the amount found due against the appellants. The above findings directly arise out of contract and are also covered by the issues Nos. 2 to 5 and 8 to 12. 9. It is clear from the judgment, and it has also not been disputed on behalf of the respondents, that no notice under section 54 of the Sale of Goods Act was served upon the appellants before resale of the unlifted quantity of rice and the respondents had based their claim of damages under the bead "other charges" mentioned in the clause 6 of the agreement (hereinafter referred to as the default clause). It was the case of tho 13. The above contention of the appellants was repelled by the learned Judge in the High Court upon his interpretation of the case-law on the question of power of the Court to set aside an award within the scope of section 30 of the Arbitration Act referred in the judgment, and it was found that : "A" "the clause 6 which has been pleaded as a ground has not even referred to in the award muchiess interpreted. Consequently without travelling beyond the award and without examining clause 6 it is not possible to find whether clause 6 was rightly or wrongly interpreted and whether the damages on the basis of resale could be awarded or not The principle, as has been laid down, does not make it permissible to examine the clause or look into the record of the proceedings conducted by the arbitrator for any of the grounds sought to be canvassed before." It was next observed as under : "B" "Indeed the damages had been allowed on the basis of resale but, apart from the contention of the learned counsel for the respondents (now the appellants before us) based on clause 6, such damages are permitted by law. So, it cannot be said that the award was against any provision of law. Since the aforesaid clause has not been either incorporated or referred to in the award and no reasons are given for no? accepting the requirement or the validity of the notice contemplated by section 34 of the Sale of Goods Act, it cannot be said that there is any error of law on the face of the award. Even the issues had neither been incorporated in the award nor referred to. Consequently, the grounds agitated on behalf of respondents cannot be sustained." Having given such findings the conclusion has been reached as under : "C" "Turning now to the present case, it is clear that the question with regard to clause 6 was actually raised and an issue was framed to the effect. So, the arbitrator was required to make the award on consideration of that clause It, therefore, follows that the ques tion of construction of the document was directly referred to him for decision and not merely it arose incidentally against a general issue about liability for damages." 14. The findings at "A" and "B" are apparently inconsistent and irreconcilable with what has been observed at "C" above. 1 15. The finding of the learned High Court that damages could be Julio wed on the basis of resale because such damages are permitted by law [is contrary to the decision of this Court in the case of West Pakistan (Industrial Development Corporation v. Aziz Qoreshi (PLJ 1973 SC 193) wherein the question for consideration was "whether under the agreement as contained in the letter dated 13th December, 1955 (Exh. 7) the appellant corporation was liable to pay any damages for non-supply of goods by it to the respondent." After examining the facts of the case a question was posed that 18. On the question as to what amounts to error of law arising on the face of the award, it has been held by the Privj Council in the case of Champsey Bbara & Co. v. Jivraj BalSoo Spinning and Weaving Company Limited (AIR 1923 PC 66), as under : "An error in law on the face of the award means that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous,"In that case the reference to the letters was only in the narrative and, therefore, the Privy Council held that there w-as no error on the face of the award. However, from the observations of Lord Dunedin, it is clear that there would have been an error on the face of even that award, if it would have run somewhat thus : "la respect of the ground of rejection contained in the letters and clause 52 of the Articles, I decide that, etc." 19. This was clearly brought out fay McNair, J., as he then was, in Nils Heime Akt v. G. Mere! & Co. Ltd. [(1959) 2 Lloyd's Rep. 292] at p. 295 : "The first question which arises on the past of this notion which seeks to set aside on the ground that the award contains an error of law on its f ce is hether, on this form of award, 1 am entitled to look at the contract, I think it is clear, on the authority of the decision of the Court of Appeal in D. S Blaiber & Co. Ltd. v. Leopold Newborne (London) Ltd. [(1953) 2 Lloyd's Rep. 427] that the mere fact that the contract is referred to in the award, especially if it is referred to in a recital to an award, does not make that contract a document which is incorporated in the award so that the Court can look at it for the purposes of seeing whether there is an error of law. But it seems to me that, in this award, the .arbitrator has gone further than merely referring to the contract by date and name, inasmuch as he has set out one at least of the material clauses, namely, that the specification was for "£x 4 and wider". It is argued on behalf of the sellers that the find ings in the award are inconsistent with the express term of tb contract and that, therefore, the error does appear. On the whole I think it is permissible to look at the contract, and 1 accordingly have looked at the contract." C The above case is on all fours, as discussed above. Alongwith the statement of claim filed on behalf of the respondents a copy of the agreement was also filed and marked as Annexure "P. !" which we are, therefore, entitled to look into and we have done accordingly. 20. This brings us to directly the question raised in the appeal with regard to the interpretation of default clause 6 of the agreement. It was the case of the respondents themselves that they were entitled to claim damages on the basis of the provision contained in the clause itself which was covered under the head other charges". Not only this the respon dents had conceded before the High Court that the award could be remitted to the arbitrator to determine the damages on the basis of the market to be the likely result of the breach. Section 74 provides for cases where a sum is named in the contract itself as the amount to be paid in the case of the breach of the contract, or if the contract contains any other stipulation by way of penalty, the party com plaining of the breach has to be compensated, regardless of the proof of any actual damage of loss, and is entitled to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named, or the penalty so stipulated. Since the amount is stipulated in the present cases, by whatever name it may be described, whether liquidated damages, penalty, recompense or earnest money, the respondent Bank, on breach of contract by the appellants, was entitled to receive reasonable com pensation not exceeding the amount of Rs. 2,000 as provided in the contract." |In the light of the above judgment the respondents are not entitled to Jthe award of damages in excess of what has been provided in the default pause. 23, The contention of the learned counsel for the appellants that prior to resale of unlifted quantity of rice a notice under section 54 of the Sales of Goods Act was required to have been served on the appellants and m the absence of such notice the resale was illegal has also considerable force. There is no dispute on the question that such notice was never serv ed upon the appellants and the contention of the respondents before the High Court was that although such notice was not given but the detect was cured as tenders were invited and the appellants had participated in those tenders. In other words the inviting of tenders could be treated as a notice required under section 54 of the Sales of Goods Act, This point stands concluded by a decision of this Court in the case of Provincial Government of N.-W. F. P. v. M. K. Musaffir referred to earlier. 24. The Government in that case had sought to rely upon section 54 of the Sales of Goods Act and the contention that although no notice of intention to resell was given to the contractors such notice should be deemed to have been given because the sale was on the basis of tenders received after notice of sale was published and had been sent to all regis tered contractors was rejected by the High Court and such finding was approved by this Court. The relevant portion of the judgment may be advantageously quoted and is as under :- "The Government also sought to rely upon section 54 of the Sale of Goods Act, 1930, which gives the right to an unpaid seller, who has exercised his ngbt of lien on the goods; to resell the said goods after notice to the buyer of such intention, and if upon the resale there be a loss, to recover damages to the extent of the loss from the buyer. this section expressly provides that if no notice be given, the unpaid seller should not have the right to recover such damages. It was contended before the Hi^a Court that altnougli no notice of intention to resell was given to the contrac tors in this case, such notice should be dsimed to have been given because the sale was on the basis of tenders received after noiice of sale was published, and had been sent to all registered contrac tors. The argument was rejected by the High Court, on the sufficient ground that such a puolic notice was not to be regarded as being in compliance with the particular notice required under section 54 o! the Sale of Goods Act. Concluding 'that no legal right vested in the Government to file a suit for damages to recoup the loss, the learned Judges allowed the appeal and dis missed the Government suit with costs throughout." 25. The above judgment is conclusive on the point and applies with full force and hence the contention of the learned counsel for the appellants cannot but be accepted. 26. It was lastly contended b> the learned counsel for she appellants that the Court had sufficient power under clause (e) of section 30 of the Arbitration Act to set aside aa award if it finds that the award "was otherwise invalid". 27. The words "otherwise invalid" are not ejusdem generis with th other cases mentioned in section ,30. The same are meant to include alii cases of invalidity on grounds other than those mentioned. According to the learned counsel the appellants were mulcted with damages by the Arbitrator in disregard of the fact that a bulk sale of huge quantity of 1.20,000 tons of rice had been made by the respondents whereas the actual unlifted quantity of rice by the appellants was only i4,853.17 tons. Need less to say that in the case of bulk sale the price offered by the purchasers mav not be the same as in respect of any smaller quantity. Thus, it was asserted by the learned counsel, that the appellants have suffered on account of such method of sale and a definite prejudice was caused to them in awarding ths damages on account of difference in th: contracted and the resale price. In the judgment of this Court in the case of the Provincial Government v. M. K. Musaffir, the respondent Mr. Musaffir had averred that the sawn timber had been sold at less than Rs. 3 00 per cubic feet while the market rate was Rs. 5.00 per cubic feet. It was observed by this Court that since the quantity of sawn timber sold after the confiscation was 21.683 cubic feet considerable difference might have been made in the price received, had not the sale been upset sale, as was also the sale of standing trees. The contention of the learned counsel, therefore, that prejudice in the matter was caused on account of bulk sale is, therefore, not without force. 28 In defending the appeal it was contended by Mr. Mansooru! Arifeen learned counsel for the respondent that inasmuch as no reason had been given in the award but only conclusions had been recorded the same, therefore, cannot be treated as a speaking award. This question has been already examined earlier and needs no further discussion. The learned counsel referred to a Karachi decision in the case of Messrs Moosa Oomar & Company Ltd. v, Messrs Haji E. Dessa & Sons and another (PtD 1971 Kar. 899) and invited our attention wherein the appellants' contention that the Arbitrator should have awarded damages on the basis of difference between the contracted price rather than resale price and, thus committed misconduct was not accepted and it was held that even if the Arbitrator had not awarded damages upon settled principle still the award could not be challenged on that score. This case is distin guishable on facts and needs no consideration in view of our findings given above. It was lastly contended by the learned counsel for the respondents that since a public notice had been published before resale of the rice, the requirement of service of notice under section 54 of the Sales of Goods Act was dispensed with. The argument has no force as discussed above. 29. We have givea anxious consideration to tb-; question of granting relief in the appeal, and as a result of our findings given as abov;, several options are open to as as under :~ (!) To set aside the award and remit the case to the High Court with the direction to decide the suit afresh after hearing the parties. (2| To set aside the award as a whole, as admittedly no notice as required under section 54 of the Stle of Goods Act was served upon the appellants as a consequence whereof the resale of the goods by the respondents was illegal ; and with such finding remit the case to the Arbitrator after setting aside the judgment of the High Court. (3) To remit the award to the arbitrator with a direction to state the reasons for the award in sufficient detail, as required under Ordi nance XV of 981 as the said Ordinance applies to pending pro ceedings as it is well established that an appeal is a continuation of the proceedings. (4) To grant relief in the appeal, ourselves. 3. In order to do complete justice between the parties we have, how ever, chosen the last option because the proceedings have been pending for a long time and it is desirable that there shouid be an end to litigation particularly when the parties had chosen the short-cut of having their disputes decided through the mediation of a Sole Arbitrator. 31. The upshot of the above discussion is that the respondents are entitled to the encashment of the C. D. Rs. and appropriate the amount of the said receipts which were held by them at the time of the termination of the contract and their claim, therefore, is restricted to a sum of Rs. 3,42,900. As regards the interest the respondents will be paid the same from the date of the decree up to the date of encashment of C. D. Rs. because if they have already cashed the same earlier, the question of pay ment of any interest does not arise. The decree, therefore, shall stand varied as stated above and as to any other benefits the parties can have recourse to restitution under section 144 of the Code of Civil Procedure. 32. The appeal thus succeeds and is allowed as indicated above. The appellants shall aiso have the cost of the proceedings throughout. (TQM) Appeal allowed,
PLJ 1985 SC 264 [Appellate Jurisdiction] PLJ 1985 SC 264 [Appellate Jurisdiction] Present : muhammad haleem, C. J., muhammad afzal zullah, shafiur rahman & mian borhanuddin khan, JJ INSPECTOR GENERAL OF POLICE, Punjab, Lahore , etc. Appellants versus MUSHTAQ AHMAD WARRAICH etc.Respondents Civil Appeal No. 321 (also No. 322) of 1983, decided on 9-2-1985. (i) Constitution of Pakistan , 1973. -Art. 8 (3) (a) read with Police Act (V of 1861)Ss. 7 & 46 (2) and Punjab Police Rules, 1934Police Act and rulesSpecial status of Police force excepted from application of fundamental rights-Held : Different treatment having been meted out to Police force qua constitutional dispensations, Police Act and rules made thereunder to have special status, [P. 276]G (ii) Constitution of Pakistan , 1973 Art. 8 (!) & (2) read with Police Act (V of 1861)Ss. 7 & 46 (2) Police forceSpecial status ofPolice Act Challenge to Police force being disciplined force treated differently in being excepted from application of Art. (8)(I) & (2)Held: Police Act and rules framed thereunder not to be challenged on basis of their having infinged constitutional limits or there being any constitutional limit on power of Parliament or Provincial Assembly to legislate in contravention of clause (1) of Art. 8. [P. 279]£ (iii) Constitution of Pakistan , 1973.
Art, 240Service of PakistanAppointment to and conditions of Law regardingEnactment ofAppropriate legislature enabled to enact law relating to appointment to and terms and conditions of services of Federal and Provincial GovernmentsHeld : Any law enacted under Art. 240 being law of general application to services and posts in connection with affairs of Federation or Province, same to have no constitutional status. [P. 275]£> (!t) Constitution of Pakistan , 1973. Art. 241 read with Police Act (V of 1861)Ss. 7 & 46 (2) and Punjab Civil Servants Act (VIII of 1974)S. 23 (2)Punjab Police Rules, 1934Origin ofSaving clause in ConstitutionEffect of Held: Rules saved under Art. 241 of Constitution being those framed by President or Governor in exercise of their rule making authority under earlier constitutional dispensations, Punjab Police Rules framed by Provincial Govt. under Ss. 7 & 46 (2) of Police Act, not to be deemed to be those framed under S. 23 (2) of Punjab Civil Servants ActHeld further : Such rules not to co-exist under two separate Acts and to owe their origin to Act under rules they which framed. [P. 274]^ & B (v) Constitution of Pakistan , 1973.
Art. 268 read with Police Act (V of 1861)Ss. 7 & 46 (2)Laws- Continuance in force and adoption of''Existing laws"Meaning ofPunjab Police ules, 1934Effect onHeld : Term "existing laws" not only meaning Act or Ordinance but also including rules within its ambit, both Police Act 1861 and ules framed thereunder to fall within definition of term and to continue to operate in their own fieldsHeld farther: word '-legislature" having not been sed in technical sense only, law making body to whom power be delegated by Act to amend, alter or repeal rules also to be included in same. [Pp. 274 & 75]C Chambers Twentieth Century Dictionary (1976 Edn. p. 752) r«/. (ri) Constitution of Pakistan , 1973.
Arts. 268, 240 & 241 read with Police Act (V of 1861)Ss. 7 46 (2) & Punjab Police Rules 1934^-LawsContinuance in force and adoption ofArt 240 or 241 containing no words of exclusion of Police Act, I860, or rules (framed thereunder) as to impede their operation as existing law under Art. 2c8 Provincial Assembly while enacting Punjab Civil Servants Act (VIII of 1974) also not repealing Police Act or rules frmed thereunderHeld : Police Act and rules having been saved as existing law under Art. 2o8, same to co-exist with Civil Servants Act, 1974 until appropriate legislature expressly repeals, alters or amends same. [P. 275J£ & F (rii) Police Act (V of 1861) S. 46 read with Constitution of Pakistan, 1973Arts. 240, 241 & 268 and Punjab Civil Servants Act (VIII of 1974)S. 1 (2)Police Act (and rules made thereunderApplicability ofCivil Servants ActEnactment ofEffect ofProvincial Assembly not expressly repealing Police Act (and rules made thereunder) while enacting C.vil Servants Act Constitution also not excluding such (Police) Act and rules from their application to officers of subordinate ranks of Police forceHeld : Substance of provisions of Civil Servants Act (being of general application, same) to give no indication to con trary by iorce of general words used. [P. 278]/ (fill) Punjab c|t» Servants Act (VIH of 1973) S. I (2) read with Police Act (V of 1861)Ss. 7 & 46 (2) & Punjab Police Rulei, 1934 Subordinate ranks of Police forceSeniority of- Determination ofCivil Servants ActApplicability of Civil Servants Act enacted to apply to services of Province of Punjab and So members of civil service or person holding civil post in connec tion with affairs of ProvincePolice officers of subordinate ranks though satisfying definition of "civil servant", such officers belonging to disciplined force to which particular Act and rules made applic able from time immemorialHeld : Generality of provisions in Civil Servants Act to indicate no strong intention for avoidance of Police Act, 1861 or rules framed thereunder, [P, 279]K (it) Punjab Police Rules, 1934 -
R. 12'2Subordinate ranks of Police forceSeniority of Determination of- Held : Seniority of subordinate ranks of Police force to be determined as from dates of their confirmation and not from dates of continuous appointment in gradeDates of confirma tion of respondents in case (admittedly) earlier to dates of continuous appointment of other respondents (not appealing against order of Ser vice Tribunal) m grade of Inspectors Held : Such respondents being senior not to be overlooked for promotion merely because of their "low" placement in seniority according to wrong principle applied in determining it. [P. 28J]# (x) Punjab Police Rulei, 1934 R, 12.2 and Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974R. 1 (3) & (4) Subordinate ranks of Police forceSeniority ofDetermination ofDepartmental Promotion Committee constituted under Punjab Civil Servants (Appointments & Conditions of Service) Rules, 1974 determining seniority of Police officers of subordinate ranksHeld : Such rules being not applicable to Police force, cases of police officers not to be competently referred to Committee for determining their eligibility for promotioa to rank of Deputy Superintendent of Police. [P. 281)0 (si) Interpretation of Statutes -Special and General law-Construction ofHeld : Special law to prevail over later law of general application. [P. 28l]AfPLD 1972 Lab. 41 ; PLD 1967 Dae. 135 ; PLD 1964 S C 673 ; AIR 1932 PC 252; PLD 1968 Lab. 344 & 1LR (1975) 1 Delhi 284 ref. (xii) Interpretation of Statutes
Special and general provisionsConstructions ofGeneralsa spedalibus non derogant-Principle of- Held : Earlier special Act not to be impliedly repealed by later general Act merely by use of general words without particular intention of implied repeal, [P, 278JH Maxwell on Interpretation of Statutes (Hth Edn. p. 168} ; Statutory Construction by Crawford (1940 Edn. p. 429) & Craies on Sutate law 6th Edn. p. 379) ref. (xiii) Police Act (V of 1861)
Ss. 7 & 46 (2)See : Constitution of Pakistan , 1973Art. 241, [P. 214]A &, B (xiy) Police Act (V of 1861)
Ss. 7& 46 (2)See : Constitution of Pakistan , 1973Art. 268. [Pp. 274 & 275JC, E &. F (xt) Police Act (V of 1861)-
Ss 7 & 46 (21-See : Constitution of Pakistan , 1973Art. 8 (1) &(2)&(3)(a). [Pp. 276 & 279JG & L (xvi) Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974
Rs. I (3) &. 4See : Punjab Police Rules, 1934R 12 (2). [P. 28i]0 Mr. Tanvir Ahmad Khan, Assistant Advocate-Generai, Punjab and Mr. Ejaz Ahmad Khan, Advocate-on-Record for Appellants. Mr. S. M, Zafaf, Senior Advocate, Supreme Court of Pakistan, in (Appeal No. 32;/83)aod Mr. M. Bilal, Advocate, Supreme Court in (Appeal No. 322/83) for Respondent No. 1. Date of hearing ; 7-6-1984. judgment Mohammad Haleem. (CJ).These appeals, by special leave, arise from the common judgment of the Punjab Service Tribunal dated I8lh of June, 1983, by which respondent Mushtaq Ahmad Warraich in Appeal No. 321 of 1983 and respondent Arshad Hussain in Appeal No, 322 of 1983 were given seniority from the date of their confirmation is accordance (Hi) The Punjab Civil Servants Act, 1974 does not repeal the Polks Act, 1861 by implication. Thus the subsequent opinion rendered by the Law Department to the Departmental Promotion Committee stood in conflict with its earlier opinion, fhe Punjab Service Tribunal took note of this conflict and held that the subsequent opinion could not form the basis of decision given by the Departmental Promotion Committee as no justifiable reason was given as to woat led the Law Department to form the subsequent opinion. The Punjab Service Tribunal thereupon examined the contentions of the parties on merits and held, firstly, that the first opinion of the Law Depart ment was correct qua the applicability of thi Police Act 1861 and the rules framed thereunder to the subordinate Police Officers on the footing that it dealt with the special class of civil servants which was a disciplined force as against other civil servants wha were governed by the Punjab Civil Servants Act, 1974, which was of general application and gave way to the special law ; secondly, that the Punjab Civil Servants Act, 1974, did not repeal the Police Act, 1861, by implication, and, thirdly, that no rules had been framed under the Punjab civil Servants Act, 1974, to deal with the terms and conditions of the police force, and, therefore, the rules already in existence were saved under section 23 (2) of the said Act. Leave to appeal was granted to consider whether in the matter of confirmatioa/seniority/promotion and other related issues, the Punjab Police Rules, 1974 read with the Police Act, 1861, would be applicable to the respondents or the Punjab Civil Servants Act, 1974 and the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, by reason of their general application lo the civil servants as a whole. The respondents took the stand before the Service Tribunal that seniority on promouon was to be determined by reference to section 7 (2) of the Punjab Civil Servants Act which provides that the seniority and pro motion shall take effect from the date of regular appointment and not from the date of confirmation as enjoined by tne rule 12.2 of the Punjab Rules, 1934, which being inconsistent stood impHedSy repealed as the Punjab Civil Servants Act, 1^7, being a later Act prevailed over the Police Act, 1861, and the rules framed thereunder. This is also the stand taken before us. Before I dwell on the main question, it would be appropriate here to give a background of this Act. The Police Act, 18ol, was enacted at a time when the Government of India Act, 18^8, as amended by the Govern ment of India (Amendment) Act, 1859, held the field, and as its preamble shows the object of enacting it was "to recognize the police and make it a more efficient instrument for the prevention and detection of crime." By section 7 of this Act the entire Police Establishment under '-Local Govern ment", which was later substituted by the words 'Provincial Government' was deemed to be one police force which was to be formally enrolled and constituted in such a manner as from :ime to time ordered by tne Provincial Government. A provision was also made for enrolling officers and men to constitute such force but the number was left to be determined by the Provincial Government. By the Amendiug Order of 1937, th; following fur.lier provision was inserted in this section : "Subject to the provisions of this Act the pay and all othar coaditioni of service of members of the subordinate ranks of any among the members constituting the force. A like provision was continued in the subsequent Constitutions namely, Articles 6 (3) (i) of the 1962 nstitution, 7 (3) (a) of the Interim Constitution of 1972 and 8 (3) (a) of the 1973 Constitution. Though the character relating to fundamental rihts and principles of policy are in abeyance yet what clearly stands out is that the Police Act and the rules were left intact and not amenable to the impact of fundamental rights at a time when this Constitution was enforced. This constitutional deprivation again reflects to the fact that the police forces was treated on a separate fooling unlike the other services of the Provincial Government, In this background the Act and the Rules according to their tenor must be regarded as a special law, and their existence cannot be lost sight of while considering the applicability of the Punjab Civil Servants Act, 1974, enacted oy the Provincial Assembly under Article 240 of the 1973 Constitution to thePolice Officers of the subordinate ranks. Now coming to the crux of the matter, it will here be relevant to re produce Articles 240, 241 and 268 of the .973 Constitution, and sections 7 and 23 of the Punjab Civil Servants Act, 1974 : "Arts. 240. Appointments to Semce of Pakistan and conditions of Service,-- Subject to the Constitution, the appointments to and the con ditions of service of persons in the service of Pakistan shall be determinedfa) in the case of the services of the Federation, posts in con. nection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament, and (b) in the case of the services of a Province and posts in con nection with the affairs of a Province, by or under Act of the Provincial Assembly. Explanation. la this Article, "All-pakistars Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Parliament, Art. 241. Existing Rules, etc., to continue. Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government. Art. 268. Continuance in Force and Adaptation of certain Laws. Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as appli cable and with the necessary daptations, until altered repealed or amended by the appropriate Legislature, The laws specified in the Sixth Schedule shall not be altered, repealed or amended without the previous sanction of the President. (4) Subject to the provisions of sub-section (3), the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed. Section 23 : (Punjab Civil Servants Act, 1974). Rules : (1) The Governor, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purpose of this Act. (2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by any authority competent to make them and in force im mediately before the commencement of this Act shall, in so far such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." In the 1973 Constitution »s enacted the constitutional guarantees such as these in section 240 of the Government of India Act. 1935, in Article 181 of the 1956 Constitution, in Article 177 of the 1962 Constitution and in Article 220 of the Interim Constitution of 1972, were omitted. Likewise the power to make rules conferred on the rule making authority such as the Governor General or the President and the Governor in the previous Constitutions was omitted. Instead Article 241 of the 1973 Constitution provides continuation of the existing rules and orders until such time as the appropriate Legislature "makes a law" under Article 240, provided they are not inconsistent with the provisions of the Constitution. These rules are liable to be amended from time to time by the rule making authority such as the Federal or the Provincial Governmsnt as the case may be. This nomenclature is used for the first time and is a departure from the earlier Constitutions. There, instead of the President or the Governor in whom the executive authority of the Republic or the Province vested and who had also the legislative power in the earlier Constitutions, the power to amend the rules is now conferred on the Federal or the Provincial Govern ment which are terms of definite connotation as would appear from Articles 90 and 129 of the 1973 Constitution (now in abeyance). Again as in clause (2) of Article 179 of 1956 Constitution, although differently worded, Article 240 of the 1973 Constitution enables the Parliament and the Provincial Assembly to enact a law in regard to the appointments to and conditions of service of persons in the services of the Federation or the Province and so also the posts in connection with the affairs of the Federation or the Province. The distiction which emerges is that previously the appointments to and the terms and conditions of service were under the rule making authority of the President or the Governor under the constitutional provisionsof the earlier constitution Acts whereas under Article 240 of the 1973 Constitution it is the law enacted by the Parliament or the Provincial Assembly which governs the appointments to and the conditions of service of persons in the services of the Federation or the province and the posts in connection with their affairs of the Federation or the Province. the rules within its ambit. Therefore, both the Police Act, 186J, and the rules framed thereunder fell within the definition of this term and continued to operate in their own field. Here as the existing laws also include the rules necessarily, therefore, the word "Legislature" would also include the authority to whom the power is delegated to amend, alter or repeal the rules. The word "Legislature" has not been used in the technical sense only but would also include a law making body to whom the power is delegated by the Act to amend, alter or repeal the rules. (Set Chambers Twentieth Century Dictionary, 1976 Ed. p. 752). Article 268 keeps alive the existing laws if they are not inconsistent with the provisions of the Constitution as the words "subject to the Constitution" are also used in this Article while Article 241 saves the rulei framed under the earlier constitutional dispensations provided they are not inconsistent with the provisions of the Constitution. Article 240 enables the appropriate Legislature to enact a law relating to the appointment to and the terms and conditions of the services of the Federal and the Provincial Government. Any law, therefore, enacted under this Article will have no constitutional status but will only be a law of general appli cation to the services and the posts in connection with the affairs of the Federation or the Province. There are no words of exclusion of the Police Act, 1861, or the rules in Articles 240 or 241 as to impede their operation as existing law under Article 268 and as held by this Court in State v. Zia-ur-Eshsaan (PLD 1973 S.C. 49) : "The Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution." Therefore, the net result would be that the Police Act and the rule$ saved, as existing law under Article 2fe8 mast co-exist with the Civil Servants Act,! 1974 and the rules saved under Article 241 until the appropriate Legisla-; tore expressly repeals, alters or mends the Police Act or the rules made thereunder, It is also worthwhile to notice that the Provincial Assembly while enacting the Civil Servants Act, 1974, did not repeal the Police Act, 18oi.' or the rules framed thereunder. This is also an added reason for their co existence. From this the intendment must be to keep the special law such; as the Police Act and the ruies alive. The chapter relating to the fundamental rights and the Principles of Policy is in abeyance and of no value in view of she Provisional Constitu tion Order, 1981. Article 8 (3) (a> which occurs in ths above chapter at the time of enactment of the Constitution excepted the Police force from the application of the fundamental rights. There was thus no limitation on the legislature to enact a law even though it was inconsistent with the fundamental rights. Necessarily, therefore, the Police Act and the rules, which is existing law, could not also be challenged for the infraction of any fundamental rights then in force. This was not so in the case of civil servants who were not excepted from the operation of the fundamental tights. The words "subject to the Constitution" in Article 240 of the 1973 Constitution placed a limitation on the power of the Legislature not to legislate any provision in the Act which was inconsistent with any constitutional provision Equally the test for the rules to be valid was that they should not be inconsistent with any constitutional orovision. And if the Police force was to bs governed by the law under Article 240 or the rules saved under Article 241 or those under section 23 (2) of the Punjab Civil Servants Act, 1974, then like other civil servants they would also enjoy the same benefit as regards the infraction of any fundamental rights Such could not be the consequence in the case of the police force as it was excepted from the application of fundamental rights by reason of Article 8 (3) (a) of the Constitution, which is now in abeyance. This obviously shows a different treatment meted out to the Police force qua the constitutional dispensations. For that matter, the Police Act and the rules have a special status. This test though merely of academic value cannot be lost sight of as at the time when the Constitution was enacted it laid the foundation for the continued application of the Police Act and the rules framed thereunder to the Police force. Their application cannot be whittled down as it would infract the maintenance of discipline. It is for this reason that this Court while interpreting the "rules" (Indian Police Regulation of Seniority Rules, 1936) relating to the seniority of Police Officers in Bashir Ahmad Khan v. Mafamud AH Khan (PLD 1960 S. C. 195), said : "They are statutory rules of the highest validity, and as has been said above, they have the quality of settling the important matter of seniority as among officers of a service whose duties are directly connected with the maintenance of law and order, and are there fore intimately bound up with a very important aspect of the public interest." Equally these observations would be applicable to the validity of the 1934 Rules governing the seniority of the Police officers of the subordinate ranks. Such being the case the special law assumes a great significance. The Civil Servants Act is an Act of general application and as earlier said it has no constitutional status. Accordingly, it is as much a law as the Police Act of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the police force. Tne sam.j is true with the rules. In this view of the matter, as to which would prevail over the other in case of inconsisteny is of no difficulty. It should not b& forgotten that the Police Act and the rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose. The principle of interpretation stems from the legal maxim generalia specialibus non derogant. Maxwell in his book on the Interpretation of Statutes, Eleventh Edition, at page 168, says : "It is but a particular application of the general presumption against an intention to alter the law beyond immediate scope of the statute (Supra, p. 78) to say that the general Act is to be construed as not repealing a particular one, that is, one directed towards a special object or a special class of objects. A general later law does not abrogate an earlier special one by mere Fn this view of the matter, the principle laid down in these treatises as to the application of the special law is in no doubt, that is, as all of them are unanimous to state that th=re is no implied repeal of the earlier special Act by the later general Act without particular intention of implied repeal mere ly by the use of general words. As held earlier there is not an express repeal jf the Police Act and the rules by the Provincial Assembly while enacting vil Servants Act, 1974, nor there is any constitutiana! exclusion of the folice Act and the rules from their application to the officers of the subor dinate ranks of the police f jrce. The substance of the provisions of the Civil Servants Act which are of general application ako do not give any odication to the contrary by the force of the genera! words used. Now coming to the case law I would first refer tc the case of the Punjab Province v Sits Ram (PLD 1956 F. C. 157). In this case the present aopea! was pending before the Privy Council at the time of the promulgation of Ordinance XV of 1949 passed on 15th of October, 1949. Thereafter on ist of May, 1950, the Privy Council (Abolition of Jurisdic tion) Act, 1950, became effective and a question arose as to the effect of the latter legislation on the former. White holding that no question of amendment of the subsequent Act by Ordinance XV of 1949 can arise even though they were not consistent with each other, it was observed : One cannot fail to notice that the Privy Council (Abolition of Jurisdiction) Act, 1950, came into operation from the 1st May, 1950, No question, therefore, of its amendment by Ordinance XV of 1949 can arise and all that perhaps can be urged is that the Ordinance and the Act are not consistent with each other, but it is a fundaments! rule in the construction of statutes that a subse quent statute in genera! terms is not to be construed to repeal a previous particular statute unless there are express words to indicate that such was the intention or unless such an intention appears by necessary implication, Queen v. Cbampneys (2). I do not think it necessary to cite many authorities in support of the above proposition. It is well recognised that general words in a later enactment do not indirectly repeal particular provisions in an earlier enactment made for quite a different purpose. A general rule should be understood in its general sense. Section 34 of the Ordinance is, therefore, to be read alongwith section 4 of the Privy Council (Abolition of Jurisdiction) Act, 1950." In State v. Mir Ahmad (PLD 1970 Quetta 49), while enunciating "the accepted genera! principles" for the avoidance of collision between different statutes" the first principle iaid down was that if the earlier and the later Acts are so inconsistent with each other that they cannot stand together then the earlier Act stands impliediy repealed by the later Act. The basis for this enunciation is the rule of implied repeal. But this principle was again emphasized to be subject to the rule : "If the prior enactment is special and the subsequent enactment is general, the earlier special legislation will not be, indirectly, repealed, altered or derogated from merely by force of the general words of the later statute, without any indication of particular strong intention to do so." ;1 have not been able to discover any particular strong intention from he generality of the provisions in the Civil Servants Act of 1974 for the However there was no consideration as to the effect of the special law over the later law of general application in the context of the special field covered by the special law. This principle of implied repeal was taken notice of in the Quetta case as well. I may repeat here that the special law was given the status of existing law under Article 268 until such time as it was not expressly repealed by the appropriate Legislature which again reacted against the rule of "implied repeal", and although judicially recognised it nonetheless remains a principle of interpretation which was pressed into service in view of the collision between the two Acts of general application in the circumstances pointed out above by Hamoodur Rahman, J.,for giving effect to the object of the later Act. It does not, in any manner, rule out the exclusion of the maxim generalia tpecialibut non derogant in suitable cases. In Montreal Corporation v. Montreal Industrial Land Company (AIR 1932 P. C. 252), the principle of interpretation as propounded in the above reatises by Maxwell, Craies and Crawford was judicially recognised in the following words : "When the legislature ha given its consent to a separate subject and made provisions for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provisions unless it manifests that intention very clearly But each enactment must be construed in that respect according to its own subject-matter and its own terms."Here comparing the two statutes I find that the provisions of the special law are of disciplinary character and were enacted with the object to fulfil the requirements of a disciplined force, which purpose cannot be achieved if the provisions of the general law were to be applied to them. The field of operation of special law is, therefore, altogether different and limited to one subject, that is, the police force. Hence, there cannot be any possi bility of any collision to attra:t the doctrine of "implied repeal". In Tahira Haq v. A. ft Khan Niaii, Additional Commissioner (Revenue) Muitao and others (PLD 1968 Lahore 344;, the rule was again reiterated in the following words : "The principle that the general law would not prevail over a specific enactment is now well settled and one may refer in this behalf to AIR 1921 Lah. 280 ; AIR 1941 Lahore 364 ; AIR 1936 All. 222 ; AIR 1932 PC 252 ; AIR 1950 Mad. 711; AIR 1934 Sind 89 ; AIR 1934 Bom. 16 and AIR 1936 Nag 180. The princi ples which emerge from these authorities are that where special provision is made in a special statute that special provision excludes the operation of a general provision in the general law," Itmay also be pointed out that the Provincial Government despite the framing earlier of the Punjab Civil Servants (Efficiency and Discipline) Rules,1975, under section 23 (2) of the Punjab Civil Servants Act, 1974, which were made applicable to all civil servants, yet framed separate rules namely, the Punjab Police (Efficiency and Discipline) Rules, 1975, on 4th of December, 1975, under section 7 of the Police Act of 1861, applicable to all police officers below the rank of Deputy Superintendent of Police. This exercise itself shows the intention of the Provincial Government to treat the Police force on a separate footing, and, accordingly, framed the rules suitable to serve the disciplinary force. I would here mention that Article 13 of the Indian Constitution does not contain any constitutional deprivation nonetheless it were the Police Rules which were applicable as special law to the police officers of the subordinate ranks in case of inconsistency with the rules framed under Article 309 of the Indian Constitution, which were of general application, [See Ramcbander v, Delhi Administration, [(1LR (1975) 1 Delhi 284]. From the above discussion it is clear that the special law will prevail over the later law of general application. Therefore, rule 12.2 of the Punjab Police Rules, 1934, will provide the criterion for determining the seniority of the subordinate ranks of the Police force as from the dates of their confirmation and not from the dates of continuous appointment in the grade as laid down in rule 8 (I) (b) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with section 7 (2) of the Punjab Civil Servants Act, 1974. As the date of confirmation of respondents Mushtaq Ahmad Warraich and Arshad Hussain as Inspec tors was earlier to the dates of the continuous appointment of respondents, Iqbal Akbar and Muhammad Tahir Ali in the grade of Inspectors, they were, accordingly, senior to them and could not be overlooked for pro motion merely because of their "low" placement in the seniority according to the wrong principle applied in determining it. I further hold that the rules deemed to be the rules under section 25 (2) of the Punjab Civil Servants Act, 1974, do not include the police rules framed under section and 46 (2) of the Police Act, 1861 In this view of the matters, the Departmental Promotion Committee constituted under the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, was not competent to determine the seniority of the Police officers of the subordinate ranks much less to hold that they were not entitled for promotion as they were placed "low" in the seniority list. The reason being that these rule would not be applicable to the police force and as such their cases could not be competently referred for determining their eligibility for promotion to the rank of Deputy Superintendent of Police. In this connection I may point out that the Punjab Service Tribunal was correct in holding that the advice first given,by the Law Department to the Government of the Punjab was correct, that is, that the special law continued to govern the police force and that it was not repealed by the Punjab Civil Servants Act, 1974, by implication. I have not been able to assess the efficacy of Article 143 and Article 148 of the Constitution which were taken into consideration by the Tribunal for determining that the Police Act and the rules framad thereunder prevailed over the Punjab Civil Servants Act on the criterion that they were Central Acts, which is not correct as the Police Act is now a ProvincialAct by reason of the subjectPolice, being within the legislative com petence of the Provincial Legislature. The alternate argument dealt with in paragraph 11 of the Tribunal's order is also of no efficacy once it is held that the special law prevails over the later law of general application. For the foregoing reasons, I agree with the Tribunal in applying rule 122 of the Punjab Police Rules in determining the seniority of the Police Officers of e subordinate ranks. However, I would observe that the cases of those promoted because of th,e misapplication of the rule of seniority by the Provincial Governmer. and have served in the higher ranks til) to-date also deserve consideration against those posts, if available, but this should not e at the cost of the respondents namely, Mushtaq Ahmad Warraich and Arshad Hussain who have also suffered for all these years or others similarly placed. Theie appeals are, accordingly, dismissed with costi. (TQM) Appeals dismissed.
PLJ 1985 SC 282 PLJ 1985 SC 282 [Appellate Jurisdiction] Present : muhammad halbbm, CJ ; muhammad apzal zullah, shafiur rahman & mian burhanuddin khan, JJ KHALILUR REHMAN KHAN DSP and othersAppellant versus PROVINCE OF PUNJAB through Home Secretary, Punjab and OthersRespondents Civil Appeals No, 312-320 of 1983. decided ob 16-2-1985 Police Act (V of 1861)-- Ss. 3 & 12 Police forceEstablishment ofAbolition of post- Effect ofHeld : Authorities charged with duty of maintaining and over seeing disciplined forces to have aoiding duty to hold out even handed and fair treatment to all concernedHeld further : Passage of time and turn of events not to prevent authority from granting relief (unless authority itself takes irreversible step) -Govern ment iui case) abolishing post of sergeant Held Incumbent not necessarily to be thrown out of service or continued in service on new t»rrm of employment, [P, 293 if, G &. H <ii) Police Act (V of 1861) S, 12Inspector General Power to make rules and orders-SergeantsAbolition of posts of Sub-InspectorsApplication of rules regarding Secretary Home Department passing express order regarding abolition of posts of Sergeants m PoliceInspector General, however, considering Sergeants to be Sub-Inspector by applying all rules (tpplicaole to Suo-ln»pectors} without approval of Provincial GovtHeld ; Requirement of S. 12 of Act not satisfied in circumitaDces. [p. 292j£ (Hi) Police Act (V of 161) St. 1 & 12Polic force Establishment of Members of sub ordinate ranksPay and other conditions of service of Held : Provincial Govt, alone to have power to determine pay and all other conditions of service of members of subordinate ranks of Police forceHeW further ; Orders and ruies framed under S. :2 by Inspector General Pohce so be conditiooaion his obtaining approval of ProvmcsaJ Govt, and their beiog in conformity with provisions of Act, r (i?) Police Act (V of 1861)
S. 12Inspector GeneralPower to make rulesHeld ; Approval of Provincial Government for rules and orders of Inspector General to be pre-condition to lend them legal efficancy and to make them capable if conferring indefeasible rights on those concerned Held further : Subjects covered by specific rules framed by Govern ment on recruitment, seniority, promotion etc. (also) not to be pro vided under S. 12. [P. 29}B 0) Pay Revision Rule -Non-inclusion of post inEffect ofHeld ; Abolition and creation of posts, their numbers and location having invariably taken care of by separate orders, Pay Revision Rules to be only evidence of rest" ructuring of pay scales, merger or separation of few (of them), their rationalization and updating by reference to inflationary trends in country's economy Certain post not finding mention in pay revision rulesHeld : Old scale of pay of such post to remain intact (till inclusion of post in schedule of pay revision rules). [P. 291]£> (yi) West Pakistan (Noa-gafefted Cml Servants) Pay Retiiion Rulee, 1959 SergeantsOmission of pay scaie inEffect of Category of Sergeants omitted from Pay Revision Rules of 1959 Held : In ference egarding such posts having stood abolished as from date of enforcement of such Rules not to be drawn, [P. 2$}C Mr. Aamar Raza Khan. Senior Advocate Supreme Court instructed by Mr. Muhammad Siddiq Siddiqui. Advocate-on-Record for Appellants (in C, A. Nos. 312 314). JUDGMENT Mr. Tanvir Ahmad Khan, A, A. G. Punjab and Mr, S. Abid Nawaz, Advocate-on-Record (absent) for Appellant (in C. A. Nos. 315-JI7). Mr. "Muhammad Arif. Senior Advocate Supreme Court and. Mr. Ghulam Qaair, Advocate (absent) instructed by Mr. Ejaz Ahmad Khan, Advocate-on-Record for Appellants (in C. A. Nos 318-320), Mr. Tanvir A. Khan, A, A. G. Punjab and Rao Muhammad Youtuf Khan, Advocate-on-Record ; Ch. Hamiduddin, Senior Advocate Supreme Court instructed by CA. Akhtar Alt, Advocate-on-Record ; Mr. Wasim Sajjad, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri (absent) and Mr M. Asif, Senior Advocate Supreme Court instruct ed by Mr. Ejaz Ahmad Khan, Advocate-on-Record for Respondents (in C. A. Nos. 312-314). Kh, M. Afzal, Advocate Supreme Court, instructed by Rana Maqbool Ahmad Qadri, Advocate-on-Record (absent); Ch. Hamiduddin, Senior Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate-on-Record and Mr. Muhammad Asif Senior Advocate Supreme Court in structed by Mr. Ejaz AhmadKhan, Advocate-on-Record for Respondenti (inC. A. Nos. 315-317). Ch. Hamiduddin, Advocate Supreme Court instructed by Ch. Muhammad Aslant, (absent) and Ch. Akhtar Ali, Advocate-on-Record, & regards, Sergeants and Sub-Inspectors, those Sergeants who were posted at M.T. Shop were allowed Rs. 50 p m. of Special Pay and Rs. 30 per month was prescribed as Special Pay for those Sergeants who were posted as Tear Gas Instructors at Police Training Centre, Sihala. The Sergeants in the Prosecution Branch, serving as Instructors at Training Institution and Line Officers were allowed Special Pays of Rs. 35 to 30 per month. Sub- Inspectors, Tele-communications and Special Crime Branches and Finger Print Bureau were also allowed Special Pay of Rs. 35. Here was found the further recognition of the existence and continuance of the post of Sergeants. Home Department which is the concerned department in the Provincial Government fo the Police issued an order on 4th of January, 1964 conver ting the post of Sergeants into that of Sub-Inspectors. The order is re produced as hereunder "The Governor of West Pakistan is pleased to accord sanction to the conversion of 27 (twenty-seven) permanent posts of Pohco Sergeants into those 01 Sub-Inspectors in accordance with the Government Notification No. FD (FK) 18-16/59 (772) dated the 30th May, 1959 according to which Che posts of Police Sergeants stand abolished. No special pa> shall be allowed to any post so converted, except in the case of 20 posts referred to below, The Governor of West Pakistan is further pleased to order that the present permanent incurnbsnts of 20 posts should, how ever, continue to draw their existing pay scales till they wither away by superannuation or otherwise", By the same order, the posts of Sergeants which were converted into the posts of Sub-Inspectors were distributed as follows "The distribution of the 27 posts of Sergeants converted into those of Sub-Inspectors is given below : - Quetta ,., 5 Lahore ... 4 Sialkot ... 1 Multan ..- i Rawalpindi ... 4 Railway Police _ 11 P. T. C-, Sihala ... Total 2 West Pakistan (non-gazetted) Civil Services (Pay Revision) Rules were enforced on i963. There was again an omission in these pay revision rules of the consolidated pay scales of Sergeants. However, the Home Department, Government of West Pakistan on the 15th of March, 1965 took a decision which was expressed as hereunder "The Government of West Pakistan is pleased to accord sanction to the fixation of consolidated scales of pay of the existing can be considered for admission of their names into List 'F' directly on the completion of 8 years service. It will nevertheless be necessary for them to undergo training in the Upper School Course and any other course prescribed from time to time before becoming eligible for further promotion under the rules. This training is necessary in order to make them eligible for holding the posts of SHOs", The rule of seniority on such a merger was spelt out in another instruction of the I. G, P. West Pakistan dated 31-8-1965 in the following words "It is further decided that the temporary Sergeants will take seniority in List G' vis-a-vis Offg. Sub-Inspectors according to their date of Offg. appointment in the rank of Sub-Inspectors. They will remain temporary till their turn for confirmation comes on the basis of seniority in list 'E'." By a decision taken by the Governor of West Pakistan and communica ted by the Home Department on 14th of January, 1966 not only the permanent incumbcnt$ of 20 posts of Sergeants but also 11 incumbents of 7 permanent and 4 temporary posts of Sergeants converted into those of Sub-Inspectors were allowed to draw their existing emoluments in their existing pay scales till they withered away by superannuation or otherwise with retrospective effect. The affected Sergeants made numerous representations to the IGP and the Government with regard to various clogs imposed on their promotion, seniority, etc. and in particular with regard to rendering of 8 years service passing of the departmental examination and application of the rules appli cable to Sub-Inspectors of Police with all its strictness and in derogation of rules earlier applicable to them. Not succeeding in the department, four of the ex-Sergeants, namely, Khalilur Rahman, Abdul Wasey, Raza Ahmad Khan and Muhammad Shafi describing themselves as Sub-Inspectors of Police filed a constitutional petition challenging these adverse conditions on their terras and conditions of service. The High Court found no force in the writ petition which was dismissed in limine on 29th of March, 1966. The matters would have remained so in the Punjab had it not been for the treatment given by the Government of Baluchistan to the case of Muhammad Shafi one of the temporary Sergeants recruited in 1961. He was equally affected by the orders then passed concerning the Sergeants. However, he happened to be posted in Baluchistan where he instituted a civil suit caallenging the various orders affecting his seniority and enlist ment. The I. G. P. Baluchistan gave an assurance to him that if he were to withdraw his civil suit, he would be suitably dealt with on merits. After the disintegration of West Pakistan in 1970 he continued to serve for two years in the Province of Baluchistan and in 1972 was repatriated to the Province of Punjab . Pursuant to the assurance extended to him, the Govt. of Baluchistan, we are told in consultation with »he Public Service Com mission of that province recognised his claim. The I. G. P. Baluchistan passed orders on the 30th of November, 1974 allowing claim of Muhammad Shafi and his grievance was redressed inasmuch as his date of entry on list'F' was fixed as 12-7-1966 instead of 8-11-1969 and on list 'G'as 11-8-1970 and his proforma promotion as DSP was ante-dated to 31-8-1970. All this was done on the assumption that even after conversion of the posts and their merger, the Police Rules concerning the seniority and promotion of Sergeants continued to hold good, At first, the effort of I. G P. Punjab was not to honour the treatment afforded to Muhammad Shaft by I. G. P. Baluchistan in 1974 i.e. after he had come over and had repatriated to the Punjab but as it related to a period when Muhammad Shafi had rendered service in Baluchistan and there was a provision in the Presidential Order No. 1 of 1970 and a policy decision with regard to repatriated officers, the position allocated to Muhammad Shafi in Baluchistan was honoured. This led to the re-examina tion of the grievances of other police Sergeants serving in the Pun jib equally affected and differently treated. The matter was discussed time and again between the various concerned departments and officers of the G 'vernment including the Advocate-General and ultimately a decision was taken by the Government that similar treatment as had been extended to Muhammad Shafi Sergeant, should be extended to all the other Sergeants similarly affected. The Home Department which acts for the Government of the Punjab in matters concerning Police addressed the I, G. P. on 30-5-1981. The order was communicated that "The seniority position of Mr. Muhammad Shafi, formerly Traffic- Sergeant now DSP and his batch mates may please be refixed in the inter-se seniority list of DSPs but excluding those Traffic Sergeants who in course of time have been reverted, awarded punish ments under the disciplinary Rules or have left service". It was also directed that "l.G.'s memo, dated 7-8-1965 may also be with drawn and a compliance report with respect to the implementation of the Governor's orders may please be furnished within a week". Following this decision, the consequential actions were taken by the I. G. P extending to the Sergeants the same treatment as they were entitled to under the Rules their entry into various promotion lists and promotion itself was ante dated. This led to widespread grievance on the part of regular Sub-Inspec tors with whom at one time the Sergeants were merged practically for all purposes except remuneration under the I. G. P.'s order. On the one hand they challenged before the Service Tribunal the treatment afforded to Muhammad Shafi and on the other to other Sergeants in the Punjab Police whose cases were more or less past and closed. Three such service appeals were filed and these were allowed. The Service Tribunal held that the order of merger of Sergeants with Sub- Inspectors passed by the Governor of West Pakistan was 6uly implemented, acted upon and the Sergeants stood merged completely with the genera! police cadre. Rule 13.14, therefore, became applicable to the Sergeants and the I. G. P. by his orders which were withdrawn by the Government subsequently did nothing but enforce the rules against them. It concluded by holding that the condition of 8 years service imposed by the I. G. P. was "neither whimsical nor arbitrary" and the same was imposed in accordance with the Police Rules, 1934 framed under the Police Act, 1861. From the fact that the posts were abolished, it was inferred that the incumbents thereof ceased to be covred by the rules still on the statute book and governing the Sergeants. The case of Muhammad Shafi was, however, dis tinguished on the ground that it was not at par with the case of other res pondents and "it would be not a matter of good taste to dishonour tho "12. Power of Inspector-General to make rales.The Inspector- General of Police may from time to time, subject to the approval of the Provincial Government, frame such orders and rules as he shall deem expedient relative to the organization, classification and distribution of the police-force, the places at which the mem bers of the force shall reside, and the particular services to be performed by them ; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them ; the collecting and communicating by them of intelligence and infor mation ; and all such other orders and rules relative to the policeforcc as the inspector-General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties". Section 12 of the Police Act does not concern the subjects covered by specific Rules framed by the Government on recruitment, seniority, pro motion etc. Besides the approval of the Provincial Govt. for such rules or orders of the !Gr> was a precondition to lend them to legal efficacy and to make them capable of conferring indefeasible rights on those concerned. It is not claimed by the parties that the orders of the 1GP had the approval of the Provincial Government. What is contended is that the abolition of the posts and cadre of Sergeants and their merger with Sub-Inspectors had such a legal effect and the IGP's order was only consequential and not determinative. The omission of the category of Sergeants irom the pay revision Rulesl of 1959 did not and could not lead to the inference that their oosts toodjC abolished as from the date these Pay Revision Rules were enforced, I The periodical pay revision rules as the very name, their promulgation and legal effect suggests are not evidence of creation or abolition of posts. The abolition and creation of posts, their numbers and location are invariably taken care of by separate orders. Pay Rev.sion Rules are only evidence of restructuring of pay scales, merger or seoaration of a few, their rationalization and up-dating by reference to the inflationary trends in the country's economy If a post does not find mention in the pay revision rules, if only implies that the pay scales ot such pasts remain unrevised till these are included in the schedule of pay revision rules failing which the old scales of pay remain intact. The Provincial Government itself recognised the existence of Sergeants as a different category ; allowed them special pays on the 19th of Decem ber, 1963 and also the benefit of consolidated scales of pay. The Inspector- General continued to recruit Sergeants as most of the recruitments were made in 1960 and 1961. Finally, we find that an amendment was gazetted in the Police Rules whereby Rule 12.4 relating to the appointment of Sergeants was amended in exercise of powers possessed under Section 40 sub-section (2) clause (c) read with sub-section (3) of Section 46 of the Police Act. This substituted rule was published on the 5th of May, 1961 in West Pakistan statute at page 191 and is to the following effect : "12.4 SergeantsAppointment of (1) Sergeants shall be appointted by the Superintendent of Police on the recommendation of a Selection Board to be constituted in accordance with the order of the Inspector-Genera!. (2) No personal shall be eligible for direct appointment as Sergeant unless he (a) has been certified as physically fit for service by the Medical Superintendent or the District Health Officer, as the case may be ; (b) has good moral character ; (c) has good physique and is of active habits ; (d) is between 18 and 21 years of age , (e) has passed the Cambridge Higher School Leaving Certi ficate Examination or the Higher Secondary Examination of the Board of Secondary Education, Lahore or any other equivalent examination : Provided that the Inspector-Genera! shall have the power in special cases, to relax the upper age limit mentioned in clause (d) and the educational qualification mentioned in clause ie)" If the intention were in 1959 to abolish the posts of Sergeants there was hardly any need m the middle of 1961 to substitute the rule of their recruitment. It was only in 1964 (4-1-1964) that an express order was passed by the Secretary to the Home Department which has the heading of 'Abolition of posts of Sergeants but deals with the conversion of the posts of Sergeants into that of Sub-Inspectors and their distribution over the ranges. It was made clear that there was to be no post of Sergeants in the Police Depart ment and further that the Sergeants and the permnent incumbents of the posts will continue to enjoy their existing emoluments till they withered away by superannuation or otherwise, a concession which was subsequently extended to the temporary Sergeants as well by the subsequent order dated 14-1-1966. There is no Govt. order that on rhe conversion of the posts of Sergeants into that of Sub-Inspectora either the services of the incumbents would stand terminated or that they will be treated as Sub-Inspectors of Police and would be governed by the rules applicable to the Sub Inspec tors. No doubt, the Inspector-General of Police on such an abolition con sidered the Sergeants to be Sub-Inspectors and applied all the rules that could possibly be made applicable <o them and this was done by the IGP without the approval of the Provincial Government and as such did not satisfy the requirement of Section 12 of the Police Act. It is correct, as contended by the learned counsel for the respondents, that on facts established in the Punjab the case of ex-Sergeants become a past and closed transaction and the ex-Sergeants could not have been per mitted to resurrect it. What we find is that the entire case was re-opened not at their instance or for their benefit. It was reopened because the orders passed by authorities in Baluchistan in the case of Muhammad Shafi who had been repatriated to the Punjab had to be taken note of and its legal effect on him and others determined. The initial attempt of the JOP Puojab was to ignore it altogether, not to give effect to it even in the case of Muhammad Shafi. When confronted with the statutory provisions leaving no options for him, he became aware of a bigger problem of unequal treat ment to a host of other ex-Sergeants posted in Punjab who were differently treated to their great prejudice. The anomaly so created came to the atten tion of the Government which carried out consultations and deliberations over a long period and finally come out with the dispensation which was ira pugned before the Service Tribunal. This dispensation has the merit of treat ing equally and uniformly those who, technicalities apart, deserved not to be treated differently from Muhammad Shafi. The Govt. was possessed of the statutory power. The bar pleaded is not referable to any statutory provi sion but to the transaction being past and closed and to the vesting of rights in Sub-Inspectors under IGP's order of 196}. The authorities charged with the duty of maintaining and overseeing a disciplined force have an abiding duty to hold out even handed and fair treatment to ail concerned. The passage of time, and the turn of events may deprive a person of his right to seek redress but it cannot prevent the authority from granting re lief unless the authority itself has taken an irreversible step, an action beyond recall. None can clim that when the Government abolishes a post, the incumbent musl necessarily be thrown out of service or continued in service on new terms of employment, On a consideration of all the facts and the law applicable, we are of the view that IGP's order dated 13-5-1963 could not bar the exercise of power by the Provincial Govt. under Section 2 of the Police Act and the Provincial Govt/s order was well within its statutory power and suffers from no legal infirmity. The result is that all these appeals are allowed and the impugued judgment of the Service Tribunal is set aside. No order as to costs. (TQM) Appeals allowed,
PLJ 1985 SC 293 PLJ 1985 SC 293 [Appellate Jurisdiction] Present : muhammad afzal zullah, nasim hasan shah & mian BURHANDUDDIN KHAN, JJ ABDUL MAJIDAppellant versus Syed AZHAR ALI SHAH and OthersRespondents Civil Appeal No, 13 of 1985 (in C. P. No. 3-P of 1985), decided on 23-1-1985, (!)Urban Rent Restriction Ordinance (W. P, Qrd. VI of 1959)
S 13Rent Controller Proceedings before Held : Neither Civil Procedure Code (V of 1908) nor Evidence Act (1 of I872i in terms to be applicable to proceedings under Rent Restriction Ordi nance--Held further : Only requirement for Rent Controller being to ensure that no party should be prejudiced by procedure adopted by him and that each party be afforded fair opportunity to present its point of view, proceedings before Controller not to be frustrated by mere formalism. [Pp. 295 & 296]A & B PLD IMS SC 39 ft/. (ii) Urban Rent Restriction Ordinance (W.P. Ord. VI of 1959) Ss. 13 & 15 read with Provisional Constitution Order (CMLA's 1 of 198!)Art. 9 and Constitution of Pakistan . 1973 Art. 185 Rent ControllerProceedings before Ex pane orderSetting aside ofHigh Court Interference withTenant giving authority to to his counsel to appear on his behalf and thereafter filing affidavit also regarding his having authorised counsel to prosecute case on his behalfRent Controller however, refusing to set asiae ex pane order (after pro- ceeding for some two years) merely on ground of tenant having not filed proper power of attorneyAdditiona District Judge in appeal, finding, such application (for setting aside ex parte order) filed on behalf of tenant by his counsel properly presented and clearly maintainableHeld : Fair and just view having been taken of situation in appellate order of Additional District Judge, case not at all to be fit for exercise of writ jurisdiction by High Court. [P. 96]C & D (lii) Constitution of Pakistan , 1973
Art. 185Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)Ss. 13 & 15. [P. 96JC & D (ir) Provisional Constitution Order (CMLA's 1 of 1981)
Art. 9See : Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)-Ss. 13 & 13. [P. 96JJ5 & C Mr. Muhammad Zahoor Qureshi, Advocate Supreme Court instructed by Mr. Qasim Imam, Advocate-on-Record (absent) for Appellant, Sardar Akhtar AH Advocate Supreme Court instructed by Ch. Akhtar Alt, Advocate-on-Record tor Respondents, Date of hearing : 23-1-1985. 'JUDGMENT Nasim 'Hasan Shah, J.This petition is directed against the judg ment and order dated 9-12-1984 passed by a Division Bench of High Court in Writ Petition No. 225 of 1984. The relevant fact are thats one Wajahat Ali Shah Kazmi, predecessorm-interest of respondents Nos. 1 to 3, had tiled an application in the Court of the Rent Controller Peshawar, for ejectment of Abdul Majid, petitioner herein, from House No. 2645, Mohallah Merviha, Peshawar City and an ex parte order of ejectment was passed against him on 17-9-1981. On the same day, shortly after the aforesaid order was passed, Mr Burhanuddm Khattak, Advocate, moved an application before the Rent Controller for setting-aside of the ex parse order. Alongwjth this application he filed a memorandum of appearance but not a proper power of attorney executed by Abdul Majid in his favour. The last-mentioned application was contested by the landlord and, ultimately, dismissed by the Rent Controller vide his order dated 12-11-1983 on the short ground that the counsel for the tenant had failed to file a duly accepted power of attorney on his behalf ana that, therefore, the application was not competent and maintainable. Dissatisfied, the tenant filed an appeal before the Additional District Judge, Peitjawar which was accepted by him on 15-3-1984,He observed that the counsel for the tenant Mr. Burhanuddin Khattak had prosecuted the case before the lower Court for about two years and during the said period nobody objected to his authority to appear and not on behalf of the petitioner. Furthermore, Mr Burhanuddin Khattak had filed an affidavit before the Additional District Judge that he was duly appointed as a counsel for the tenant, the contents of which affidavit were duly supported by the tenant. He, therefore, held that the applica tion filed on behalf of the tenant by Mr. Burhanuddin Khattak for setting aside ex parte order dated 17-9-1981 was properly presented and was clearly maintainable and it was, therefore, wrongly and illegally rejected by the Rent Controller. The appeal was, accordingly, accepted and the order of the Rent Controller passed by him on 179-1981 was set-aside and the application remanded back to him for decision on the merits in accordance with law. The landlord feeling aggrieved bv the order of the Additional District Judge filed a writ petition before the High Court which was surprisingly accepted by a Division Bench of the said Court vide their judgment dated 12-9 1984 on the ground that the failure to file a duly executed power of attorney wasagainst the mendatory provision of Order III Rule 4 of the Civil Procedure Code which lays down that: "No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a docu ment in writing signed by such person or by bis recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment. Their conclusion was expressed thus: "Consequently, we have arrived at the conclusion that the impugned judgment made by the learned Additional District Judge was completely against the law because the respondent had not complied with the mandatory provisions of Order III of the Civil Procedure Code, and an illegality of grave nature was committed by him in accepting the appeal." This petition for leave to appeal is directed against the aforesaid judgment. The Court has repeatedly pointed out that neither the Civil Procedure Code nor the Evidence Act are in terms applicable to the proceedings under the Rent Restriction Otdinance. The earliest decision on this point was by the Full Court in the case of Khadim Mohyuddin and another v. Ch. Rehmat AH Nagm and another (PLD 1965 SC 4s9) wherein it was observed: "Though under section 16, West. Pakistan Urban Rent Restric tion Ordinance, 1959, the 'Controller' has been given powers "of summoning and enforcing the attendance of witnesses and compelling the production of evidence", he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10(3) and 12 to make orders after holding such inquiry as he thinks fit. In such cases the question of nature of enquiry is left to him That means that in such enquiries the parties have no right to insist on production of such evidence as they desireto adduce in support of their case. In short these inquiries may te such as are conducted by an executive officer." (underlining is ours). In subsequent eases it was further explained by this Court that proceedings before the Rent Controller are not to be frustrated by mere formalism because in deciding such cases the only requirement for him is to ensure that no party should be prejudiced by the procedure adopted by him and that each party is afforded a fair opportunity to present his point of view. In this case, Sardar Akhtar Ali, learned counsel for the respondents, who appeared in support of the caveat filed on their behalf, conceded that though Mr. Burhanuddin Khattak could have "appeared" before the Rent Controller on the basis of the memorandum of appearance filed by him but he could not have "acted" on his behalf and, therefore, could not have filed an application for setting aside the ex pane proceed ings, because this was not permitted by rule (4) of Order 111 of the Civil Procedure Code. We feel that there could hardly be a clearer case of a technicality aeing invoked to thwart the decision of a case on the merits than trie one invoked herein. The tenant had given authority to Mr. Burhanuddin fChattak to appear on his behalt and thereafter he also filed an affidavit to certify that he was fully authorised to prosecute the case on his behalf. Nevertheless his right to have the ex parte order of ejectment has not been attended to on the merits simply because he had not filed a proper power of attorney and the whole proceedings lasting for some two years, held to be bad on this short ground. This is exactly the situation which this law intended to avoid. We may, however, point out that Sardar Akhtar Ali also relied upon Section 22 of the Legal Practitioners and Bar Councils Act, 1973, especial ly subsection (3) thereof which lays down: "No advocate shall appear or act for any person in any Court or Tribunal unless he has been appointed for the purpose by such person by a document in writing signed by such person " But apart from the fact that the proceedings before the Rent Controller are such as are conducted by an executive officer, as pointed out in Khadim Mohyuddin's case, this was not at al! a fit case in which the High Court should have exercised its writ jurisdiction, to set aside the appellate order of the Additional District Judge, in which a fair and just view had been taken of the situation. We would, therefore, convert this petition into an appeal and allow it. The judgment and order dated 12-9-1984 passed by the High Court is hereby set aside and that of the Additional District Judge dated 15-3-1983 restored. The result will be that the matter will go back to the Rent Controller for decision of the application filed by the appellant before him for setting aside the ex parte order dated 17-9-1981 in accordance with law. The appeal is allowed, leaving the parties to bear their own costs. (TQM) Appeal allowed.
PLJ 1985 SC 318 PLJ 1985 SC 318 [Appellate Jurisdiction] Present : mohammad AfZAt zullah & M. S. H, qurasshi, JJ AKHTAR ALIAppellant versus AZHAR AL ! SHAH and Another-Respondents Criminal Appeal No. 54 of 1984, decided ob 13-3-1985. Baii-
Cancellation ofAbscondenceEffect ofRespondent remaining absconder for twenty two months R epeated adjournments also sought by such respondent or his counsel even after grant of bail by High CourtHeld : Fact of respondent having remained absconder for long time being relevant factor, same not to be lightly taken in enlarging him on bailHeld further : Respondent being not free from blame for delay in trial, bail granted to be cancelled Constitution of Pakistan, 1973^rt. 185 & Criminal Procedure Code (V of 1898)S. 497 (5). [P. 319]A (ii) Constitution of Pakistan , 1973
Art. 185-See : Bail. [P. 339] A (Hi) .Criminal Procedure Code (V of I89S) - S. 497 (5)-See : Bail. [P, 319] A . Mr. M. Bilal, Advocate, Supreme Court instructed by Mr. Imtiaz Muhammad Khan, Advocate-on-Record for Appellant. Mr. S. Zafar AH Shah, Advocate Supreme Court for Respondent No. I. Hafiz S. A. Rehman, Advoe«te Supreme Court for Respondent No. 2. Date of hearing : 13-3-1985. judgment M. S. H Quraishi, J..This appeal by leave of the Court is directed against the order of the Sukkur Bench of the Smd High Court, dated 21-2-1984, whereby the plea of the appeUant/complamant for recall of bail granted to the respondent by the said Bench on 14-2-1984 was refused. 2. The appellant is the brother of the respondent who is accused of aiurdering their father in December 1979, The respondent having remaioed ubsconder for some 22 months, surrendered on 21-10-1981. His repeated applications before the trial Court for bail having been rejected, he applied to the High Court, in the result of which be was granted bail on 14 2-1984. The mam consideration for the grant of bail wai clause «b) to the third proviso to section 497(1) Cr. P. C. The appellant lought recall of the order, urging that the respondent was guilty of suppression of material facts including rejection of his bail application by the trial Court only three days earlier, i.e., on 11-2-1984. and of delaying the trial But his applica tion wa§ refused by the impugned order. The appellant' plea that the respondent was responsible for delaying the trial was rejected upon a finding that he had sought only two adjournments during the period of more than two years. This rinding was disputed at the time of grant of leave and it was urged that the delay had taken place either on account of the respondent or of one of his co-accused. It was urgid that even after the grant of bail the respondent had been delaying the trial. Wnile granting leave, notice was ako issued to the respondent to show cause why in view of the suppression of material facts, his application for bail be not ordered to be re-heard. 3. The assertion that the respondent was not free from blame for the delay in the trial of the ca-se is not without force. The F I.R. in the case had been lodged on 16-12-197. The respondent had remained absconder for 22 months Even after the grant of bail by the High Court, he or his counsel had been responsible for repeated adjournments. According to the appellant's counsel, adjournments had been taken by the respondent's counsel on 19-5-1984 and by the respondent on 4-6-19&4. On 8-7-1984 the respondent remained absent for the reason that his train was late. On 17-11-1984 he took adjournment on the plea that his Advocate had gone to attend the High Court at Karachi . 4. After hearing both sides, we are satisfied that bail to the respondent was not deserved. The fact that he had remained absconder for a long time, was a relevant factor and should not have bee a lightly taken in enlarging him on bail. His conduct, too, shows that he is not free from blame for the delay in the trial. We, therefore, allow the appeal and cancel the bail granted to the respondent. The trial Court may, however, consider th; grant of bail to him at the conclusion of the trial, under section 497 (4) Cr, P, C. if the grounds for such bail be available. Bail cancelled.
PLJ 1985 SC 319 PLJ 1985 SC 319 [Appellate Jurisdiction] Present : muhammad haleew, CJ , aslam riaz hussain, shafioi rahman, zafpar hussain mirza & M S.H. quraishi, JJ VICE CHANCLLOR, University of the Punjab & 2 OthersAppellants versus MUHAMMAD ZAHUR NASIRRespondent Civil Appeal No. 695 of 1984, decided on 18-12-184. (i) Constitution of Pakistan , 1973 Art. 185 read with Provisional Constitution Order (CMLA's 1 of 1981} Art. 9-Educational InstitutionDisciplinary Committee of ExamineeDisqualification ofDecision ofChallenge toDis ciplinary Committee of University finding respondent guilty of having "hatched conspiracy with concerned Tabulators and made delibe rate previous arrangement to cheat in examination by way of getting his result forged for his benefitRequest of responded! to call and examine responsible members of staff in his presence, however, turned down by CommitteeEven names of such persons not dis closed to respondent High Court subrequently, declaring such order of Committee to be without lawfu! authority and no legal effectHeld : Requirement of fair opportunity of hearing having not been satisfied and respondent having also been grossly handicapped in his defence to meet charge of being in complicity with unnamed and faceless members of staff, judgment of High Court to be unexceptionable. [Pp. 325 & 326JD & E PLD 1965 SC 90 & PLD 1971 SC 838 ref. 197? SCMR 213 : PLJ 1979 SC 156 & 1982 SCMR IOS4 distinguished. (ii) Constitution of Pakistan , 1973 -Art, 185 read with Provisional Constitution Order (CMLA's ! o r f 198i)Art. 9University AuthoritiesWrit againstDiscipJina y proceedingsOrder inChallenge toHeld : University Authorities not to be required to strictly follow technical rules of evidence en joined byEevidence Act (1 of 1872, in disciplinary proceedings- No fair and sufficient opportunity of hearing given to respondent (examinee)Disciplinary Committee also drawing arbitrary inference against respondentHeld : High Court proceeded on no violation of rule of evidence in quashing decision of Disciplinary Committee. [Pp. 323 & 324]^ & C PLD 1965 SC 90 rtf. (Hi) Educational Institutions Disciplinary forums Functioning ofProcedural requirements ofHeld : Disciplinary forums functioning in educational institu tions though not ied down to procedural requirements of trial in judicial or quasi judicial forum (administering oath or examining witnesses in presence of accused person or iving him facility of cross-examining witness), unfair or arbitrary decision of such forum not to be sacrosanct, (b)SC319 Ch. Muhammad Farooq, Senior Advocate Supreme Court instructed by Mr. K. E. Bhatii, Advocate-on-Record for Appellants. Respondent in person, Date of hearing : 18-12-1984. judgment Zaffar Hussajn Mirza, J This appeal by special leave arises out of the jucgmenl and order of Lahore High Court at Lahore , dated 26-2-1984, accepting the constitutional petition and declaring the order of the Discip linary Committee, Unfair Means Cases, University of the Punjab , to be withoutlawful authority and of no legal effect. 2. Respondent Muhammad Zahur Nasir, having appeared and failed at the LL.B., annual examination, held in 1980, appeared at the supple mentary examination held in June 1981, onlv in respect of paper III which he had failed to clear in the annual examination. During the scrutiny of the results, It was revealed that although in the award-list, the respondent the staff allegedly involved in the forgery be summcraed to confront him, but his request went unheeded. His grievance before the Disciplinary Com mittee was that the person wish whom be is alleged to have been in league be named arid his identity be disclosed. Nevertheless without attempting to do so the Committee proceeded So determine the guilt of the respondent on the assumption that since he was the beneficiary of the variation in the result sheet in regard to his marks, he was an accomplice in the offending act. This is clear from the following excerpt from the report of the Com mittee dated 21-10-1982 : "'If was noted that although it has been clearly mentioned on the original Award List that the candidate has obtained 14 marks yet 4 marks have been posted against hr Roll No. on the Resultsheet, which clearly indicates the malafide inteatioa on the paits of the Tabulators to benefit the candidate. The mere fact thatt the award of the candidate in Paper III have been enhanced on the Result-sheet by 31 marks to his advantage is sufficient to prove tbe charge levelled against him. Since the circumstances of the case are competible with the guilt of the accused candidate, he cannot be given the advantage of any doubt. The Committee was of the firm view that the charges against tbe candidate have been fully estaolished beyond doubt because the very Result-sheet manifests his guilt. The Committee after considering the case from various aspects was fully convinced that the candidate had hatched conspiracy with the concerned Tabulators and made deliberate previous arrange ments to cheat so the examination by way of getting bis result forged for hss benefit." in its report dated 31-1-19^ after the remand aad reconsideration, the Committee reiterated their view as follows :"Foreseeing a probable adverse eventality that could have resulted in physoological frustration for the accused, he must have prior connivance with the official concerned for illegal enrichment in marks, it is a fact that the accused's result i»i the Result-sheet has been fabricated and tampered with to h,-, advantage in a glaring manner to show him passed in the examination whereas in reality he has badly failed in Paper Hi The fabrication and forgery in the official record does establish the mens-rea oo the part of the accused and the clerk involved in committing an illegal act knowing it fully well that it was aot qnly morally wrong but also an offence -against the Saws of the University and these of the land as well." 7. After a laborious review of the case law bearing on the scope of the rule of nu> . u>iice to which the domestic forums are required to ad here, particularly with lefereoce to educational institutions, the High Court summarised its conclusions in the following manner ; "The above analysis of the facts and the rule laid down by the Supreme Court in the cases cited by the learned counsel for the respondents would lead to the inevitable inference that the criteria set down by the Supreme Court in Zakis- Atoad'g case judging to strictly follow the technical rules of evidence enjoined by the Evidence Act and the decision of the High Court does not proceed on the violation of any such rule of evidence. It cannot be disputed that notwithstanding the settled view that the disciplinary forums functioning in the educational institutions are not tied down to procedural requirments of a trial in a judicial or quasi-judicial forum, like admimstring oath or examining wit nesses in the presence of the accused person or giving him facility of crossexamining the witnesses, the decision of such forum is nonetheless not sacrosanct if it is unfair or arbitray. In proceeding to quash the decision of the Disciplinary Committee in the present case the High Court, as would appear from the quoted passage from the impugned judgment, acted on the finding that the opportunity of hearing given to the respondent was not fair and sufficient and that the inference drawn by the Committee was arbitrary. Three decisions of this Court were particularly rehed in support of the proposition that a candidate who is the beneficiary of a wrong ful act done by the University Staff must be presumed to have complicity in the wrongful act. These are Rabat Siddiqui v. Board of Intermediate & Secondary Education (197? SCMR 213), Akbtar Ali v. The University of the Punjab I.PLJ 1979 SC 1^6) and Masood Pervaiz v. The Disciplinary Committee, University of the Punjab and others (i982 isCMR Iu84). 9. After carefully examining the decisions on which reliance ha besn placed in support of the proposition advanced by the learned counsel for the appellant, we find that no such general proposition or rule of evidence was iaid down that a presumption of guilt arises ipso facto from the fact that the candidate is the beneficiary of the wrongful act. Before examining the decisions, however, it may be pointed out that in Samar Pervaii v. Board of Intermediate and Secondary Education (PL.D 1971 SC 838), following weighty observations were made which are relevant for the discussion in hand : "It is true that domestic Tribunals like a University or a Secon dary Board of Education are free irom the fetters and the forma lities of a judicial trial, and while these can, consistently with the demands of justice, be ignored, it does not, by any means, follow that such domestic forums, while dealing with valuable rights and privileges of an individual, can snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is iegal proof of its existence, he cannot take it as proved, Conjectures and suspicion cannot take the place of proof. A Tribunal's decision must resc not on suspicion but upon legal grounds established by legal evidence. In the present case, apart from the fact that the appellant's marks were increased by tampering with the records, and he is the bene ficiary thereof, there is no evidence at all to connect him with bringing about that result. The mere fact that the marks had been inflated and the appellant stands to benifit from that circumstance may convincingly lead one to a conjectural hypothesis that this was done at his instance or witb his connivance, but it is no more than a mere conjecture," la the first case relied upon the decision did not proceed solely upon the n propounded by the learned cousid. Tee facts were mat tbe candidate's detailed marks certificate showed that he had secured 45 marks in Social Studies and 54 marks in Physics. Upon his application to the Board of Education for rechecking of his answer books in respect of the aforesaid two papers, it was revealed that the candidate's marks on the answer book in respect of one paper had been inflated from 45 to 70, although in the original award list they were shown as 45 marks. Nonetheless the revised award list and its counter file duly signed by the Sub-Examiner and Head Examiner mentioned 70 marks. It is important to note that the Sub-Examiner and Hjad-Examiner were required to explain the discrepancy and it was then disclosed that the H-^ad Examiner had sent for the Sub-Examiner and asked the latter to revise the answer of the appellant and to give marks on answer to a particular question of the said-paper. In the course of inquiry it was found as a fact that the original answer to the particular question carried much less marks and had been replaced by another answer to the particular question written in the hand of the candidate upon which inflated marks were assigned. On this material the final conclusion was arrived at by the Disciplinary Committee that these acts were done in collusion by the candidate and the two examiners. Clearly, therefore, the facts of this case furnished sufficient material to find the accused candidate to be guilty of comlicity, in so far as, he had direct hand in manipulating the fresh answer after the examination on which inflated marks were given. As such, the case proceeded on tangible evidence of collusion in which the candidate was found to have participated and the case did not proceed on presumptive inference The case of Akhtar 4H also does mt appear to have been decided by the Disciplinary Committee on the rule of presumption that the accused candidate was the beneficiary of the wrongful act on the part of the staff of the University. The allegation was that he had forged a letter purporting to have been wiitten by the University Authority to the Medical College . This was not a case of involvenunt of the University Staff in miking or fabricating a false document. Tne cond JCt of the candidate and his explanations tendered on different occasions wire examined to reach the conclusion of guilt against h'<n. Therefore, this case is again distinguish able on facts. In the case of Masooi Perreez also the chirgj of cheating against the student related to his replacing inner sheets of the official answer book in th: examination. In the very nature of the al'egations the candidate alone could bs responsible and no numw of the staff was alleged to have been involved in the act charged. There was, therefore, no question of the act of a member of the staff to the benefit of the accused candidate so as to raise the presumption that it was done at his behest. 10. In contrast to the cases relied upon, in the case before us, as pointed above, no opportunity was given to the respondent to be con fronted with the members of the staff who were in charge of tabulation work and were said to have been responsible for the inflation of marks, so that the Committee could have satisfied itself whether or not the respondent was in complicity with them in the wrongful act. Indeed a positive request in this behalf which appears to us to be well justified, was turned down by the Committee and even the names of these persons were not disclosed to the respondent. In absence of this information, we feel the respondent was grossly handicapped in his defence to meet the charge of being in complicity with unnamed and faceless members of the staff in the University in procuring the result in his favour. As found in Samar Perveiz's case the material placed before the Committee, in the absence of positive evidence to prove the respondent's participation in manipulating his result by forging the record,%«.the matter remained in the realm, pf inference The facts on record did not yield the irresistible inference that he was necessarily privy to the act, as the other hypothesis which glares one in the face was that a mistake had crept into the result on account of an arith metical error deliberately or accidentally made by the functionary of the Board. If the Committee had found itself agreeable to the suggestion of the .respondent and called the responsible members of the staff and examined them in presence of the respondent or had given him an opportunity to give an explanation to what they might have to say, they would have sufficiently satisfied the requirements of fair opportunity of hearing. Unfortunately this course of action was not adopted and therefore, we have come ip the conclusion that the judgment of the High Court is unexceptionable. 11. In the result this appeal fails and is accordingly dismissed but with no order as to costs. (TQM) Appeal dismissed.
PLJ 1985 SC 326 PLJ 1985 SC 326 [Appellate Jurisdiction] frtttnl ; muhammad haleem, CJ ; As lam rue husiain & shafiur rahman, Jj Ch. MUHAMMAD SHARIF-Appeliatst versus AFSAR TEXTILE MILLS LIMITED and AnotherRespondents Civil Appeal No. 164 of 1972, heard on 6-11-1984 Constitution of Pakistan , 1973 Art. 185 read with Land Acquisition Act (I of 1894)Ss. 18, 21, 53 & 54 and Civil Procedure Code (V of l»r08)O. VI, R 17Court- Reference toApplication forAmendment inHeld : Each case to be decided on its facts and circumstances and no hard and fast rule to be laid down as to m which case and to what extent amendment (in application for reference of matter to Court) to be allowed - Claimant in case intentionally waiving his right tc claim higher amount with full knowledge of his existing right Trial court howevei, subsequenily allowing enhancement in his claim for urban land High Court, on other hand, setting aside such order in appealHeld : Court being not competent to extend its jurisdic tion beyond deterruination of pecific question referred to it, objecnot to be allowed to claim increased compensation for acquired land by making amendment in original application filed before Collector. [P. 338JF&G AIR 1930 PC 64 ref. AIR 1945 Cal. 312 distinguished. (H) Land Acquisition Act (I of 1894)
Ss. 9, 11, 18 & 21ClaimantNature of interest of Parti culars ofSupplementary claim to compensationCompetency of Held : Claimant to fully present his case before'Collector by giving out particulars of claim as to nature of interest and amount of com pensation desired for it Held further : Fresh case by way of supple mentary claim to compensation or otherwise not to be made out at stage of judicial determination. [P. 337]C AIR 19:0 Mad. 576 ref. (Hi) Land Acquisition Act (I of 1894) Ss. 9, 11, 18 & zl ClaimantParticulars of claim ofAward Objection toHeld : Pleadings being foundation for grounds on which objection to be taken to award while seeking judicial deter mination under S 18 of Act, same to alone become matter referred under S. 18 of Act and Court to have no power to determine or consider any thing beyond it. [P. 337]£> (ir) Land Acquisition Act (I of 1894)
Ss. 9, 11, 18 & 21-ClaimParticulars ofHigher amountRight ofWaiver ofEffect ofClaimant intentionally waiving his right to claim higher amount with full knowledge of his existing right Matter subsequently referred to CourtHeld : Matter referred for determination being his specific objection to award, claimant not to be allowed to re-assert his existing right to higher amount before Ccurt. fP. 338]£ AIR"44 Cal. 247 ; AIR 1941 Sind 151"; AIR 1930 Mad. 576 & 1936 Lab. 733 ref, (r) Land Acquisition Act (I of 1894)--
Ss. 11, 12 & 18Collector Award by Finality of Court Reference toHeld : Award made to be decision conclusive qua Collector under S. 12 of ActOwner, however, to be competent to obtain judicial ascertainment of value by requiring matter to be referred by Collector to Court under S. 18 of Act. [P. 337]fl (vi) Land Acquisition Act (I of 1894)
Ss. 18, 20, 21, 25 & ^3--Civil Court-Reference toCivil Proce dure Code (V ot 190fe« -- Applicability of Claim Increase in Amendment regardingHeld : Provisions of Code of Civil Procedure being applicable to roce/hngs before civil court on reference by Collector (except in case of inconsistency between any provisions of Code nd Act), Order VI n;ie 17 of CPC to apply to such proceedings (to extent indicated in sections 18, 20, 21 & 25). [P. 29]/4 (fii) Land Acquisition Act <'I of 1894)
Ss. 18, 21, 53
& 54--See:
Constitution of
Pakistan
, 1973
Art. 185.
[P. 328J/&
G
Ch
Khahlur Rehman, Senior
Advocate
Supreme
Court instructed by
Sh. Salahuddin, Advocate-on-Record for Appellant.
Mr. Maqbool Ahmad Qadri, Advocate-on-Record
(absent) for Respon dent No. 1.
Respondent No. 2 :
Ex pane.
Date of hearing : 6-11-1984.
judgment
Muhammad Haleem, C. J.Leave to appeal was granted to consider the question of law as to whether the Court hearing a reference under section 10 of the Land Acquisition Act can allow an objector to claim increased compensation for the acquired land by making an amendment in the original application 6Ied by him before the Collector requiring a re ference under the said section.
Certain lands belonging to the appellant were acquired for respondent
No. 1 by the Collector by his award dated 1-12-1974 after the issuance of relevant notifications under the provisions of the Land Acquisition
Act
(hereinafter called the "Act").
The compensation awarded was as follows :
Nehri
...
Rs. 4,000 per acre
Chahi
...
Rs. 5,000 per acre
Barani
...
Rs. 1,000 per acre
Banjar Jadeed
...
Rs.
750 per acre
Banjar
Qadeem
...
Rs.
500 per acre
This was after considering the claim of the appellant in response to the notice issued under section 9 of the Act.
Not being satisfied with the amount of compensation awarded, the appellant filed an application before the
Collector for referring the matter to the Court for decision. In that application he claimed compensa tion at a flat rate of Rs. 6,4 0 per acre without any reference to the classi fication of soil. The Collector, accordingly, referred the matter to the
Civil Court for its decision. During the pendency of the said application, which was registered as a suit, the appellant moved an application under
Order VI rule 17 and section 151 of the Civil Procedure Code seeking to enhance the amount claimed in the application. Instead of the flat rate of
Rs. 6,400 per acre as was claimed earlier the amount now claimed was
Rs. 100 per marla for the rural land and
Rs. 50u per marla for urban land.
The Senior Civil Judge, Sheikhupura, by order dated 14th of December, 1967, disallowed the prayer for amending the claim for rural land, but the claim for the urban land was allowed to be enhanced as under :
'That the compensation Tor the urban area is worth Rs. 100 to
Rs. 500 per marla, according to the transactions made in the mutations' register of the circle."
This was the same rate of compensation as claimed in response to the notice issued under section 9 of the Act. The first respondent went in revision to the High
Court against this order and succeeded as it was allow ed by the judgment dated 7th of April, 1972.The High Court while holding that there was a conflict of judicial authority on this point referred to amongst others the cases reported as
Rai Pramatha Nath
Mullick Bahadur v. Secretary of State (AIR 1930 PC 64), Umar Balthsh and another v.
The Secretary of State, (46 I. C. 906), Secretary of State v.
C. R. Subramania Ayyar (AIR 1930 Mad. 576), Rer.
shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11, (2)
When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed y the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.
(3)
When the applicant has emitted for a sufficient reasons
(to be allowed by the Judge) to make such claim, trie amount awarded to him by the
Court shall not be less than, and may exceed, the amount awarded by the Collector."
Sub-section (1) of section 18 enumerates the matters which caa form the subject matter of reference by the Collector for the determination of the
Court and one such matter is the "amount of compensation." Sub-sectionof section 25 lays down he "minimum" and the maximum' within which the Court must limit its award, that is when the objector has put in his claim for compensation under section 9 of the Act, the amount awarded to him by the Court shall not exceed the amount o claimed or be less than the amount awarded by the Collector under section 1! of the Act. Sub-sections and
(3) of ection 25 will not be applicable so the case of the appellant as the situation envisaged in either of the two sub-sections is t present in the instant case.
Section 20 requires service of notice on the applicant, aiS persons interested in the objection nd the Collector if the objection is in regard to the area of the land or to the amount of compensation.
Sec tion 21 of the ct again restricts the scope of the inquiry to the contideration of the interests of the peisons affected by the objection.
gain the word
"objection" in this section has the same connotation as in section IS of the
Act.
The trial Court while allowing the Civil
Revision held ai under :
"Even if it is assumed that Order V.I, rule 17 C. P.
C. was attrac ted to the facts of the present case, the learned Court has acted with material irregularity and illegality in the exercise of its jurisdiction by allowing the amendment. The respondents should be taken to have waived their claim at the rate ranging from
Rs. 16,000 to Rs. 18,'00 and to have reduced it to a sum of
Rs. 6,«»00 for acre.
Apparently tbb cannot be termed as a mere clerical error. The amendment claimed introduced a totally inconsistent plea which should not have been allowed even on the general principles or Order VI, rule 1? C. P. C. It could not also be said that this amendment was necessary for deciding the real dispute in controversy between the parties."
A wading of the above sections shows to what extent the power to allow an amendment under Order VI rule 17 C.P.C. is curtailed. An illustration in hand can be where a reference under section 18 of the Act relates to a dispute regarding apportionment between A and B. The Court cannot a low C and
D to be added on their own application to contest the award on a ground not raised in the reference. The point altogether is not free from difficulty as there is divergence of opinion between different High
Courts and not only this there is aiso difference of opinion in the same
High Courts, The starting point is the decision of the
Judicial Committee in the case of Pramatha Nath Mullick Bahadur v. Secretary of State
(AIR 1930 Privy
Council 64). In that case although the award of the
Collector was based on measurements but no question as to their correct ness was raised in the application filed for referring the dispute (under section 18) to the Court for determination.
Tbe objection taken was to the valuation of the land only. In the Court a pica was taken that either the
Government shou!d admit a larger area or in the alternative there should
De a fresh measurement, The trial Court disallowed the prayer and so did the
High Court but again on appeal from the order of the trial Court thii ground was taken which was repelled. It was this refusal which was the subject-matter of decision by the Judicial Committee. The
Judicia!
Committee referred to sections 18, 20 and 21 and held as under :
"Their Lordships have no doubt that the jurisdiction of the Courtl under this Act is a special one and is strictly limited by the terms of these sections. Il oniy arises when a specitil objection hat been takers to the
Collector's award, and it is conSned to a consideration of that objection. Once therefore it is ascertained that the only objection taken is to the amount of compensation, that alone is the "matter" referred, and the Court has no power to determine or consider anything beyond it."
What appears to be the ratio decidendi of this case seems to me to be that, the jurisdiction of the Court in dealing with the reference under section 18 is restricted by the terms of section 18 as enjoined by sections 20 and 21 of the Act.
As said earlier there is difference of opinion on this question, and so also the above dictum of the Judicial Committee has been construed differently by the High Courts. In
Secretary of State v.
C. R. Subramania
Ayyar (AIR 1930 Madras 576), the objector lodged his claim by the addition of two new items, e g , th; cost of constructing new walls and the cost of erecting latrine bsfora th; Court.
Tnis was objected to on behalf of the Government, and it was argued that the
Court had no power to entertain such newly preferred claim. The trial Court allowed the claim in respect of the latrines, but disallowed it in respect of the walls. A revision was taken to the High Court against the allowing of the claim in respect of the latrines. In this context. Cargsavjn, J., \vinls holding tint the trial
Court had no power to allow a supplementary claim to compensation, observed :
"In all ordinary circumstances, therefore, a claimant can and should present his case fully before ths Collector, and should be held bound throughout the proceedings by what may be termed his pleading-'.
Turning then to S. 18, it etubies a parson interested to require the
Collector to refer the matter for the determination of the Court :
'Whether the objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment ot the compensation amount to the persons interested." objection considered must fall under the same category in section 18 (!) of the Act as the objection pleaded. Having said so, the decision of Curgenven, J, in Secretary of State v.
C. R. Subramania Ayyar, was commented upon as having gone too far if it was taken to mean that the Court has no jurisdiction in a proper case to allow the claimant to vary the basis of his objection or to frame an issue relating to the same head of petition, but not arising precisely out of the pleadings.
Accordingly, it was held that it was sufficient if the claim had fallen in the same category, i.e., compen sation in section 18(1) of the Act. An appeal was taken against the decision of the High Court to the Privy Council which is reported as
Vyricherla
Narayana Gsjapathaju v. Revenue Divisional Officer, Vizagapatam
(AIR 1939 Privy Council 98). As the appeal of the
Revenue
Division
Officer, Vizagapatam had succeeded in the High Court, the appellant challenged the legality of the valuation on the ground that the
High Court was in error in not awarding the compensation on a proper consideration of sections 25 and 24 (5) of the Act. For a better under standing of the judgement of the Privy Council it would be necessary here to refer to the finding of the High Court:
"Let us apply the law as laid down in these rulings to the facts of the present case. It has been shown that there was at the time of the notification no other purchaser besides a harbour who was reasonably possible as a purchaser for the diinking water supply on the respondent's land. That being so, this special adaptabi lity has no value apart from the value created by the scheme for the purpose for which it is acquired. Even if we are to take into account the speculative rise of price which might have taken place by reason of the owner conceiving the possibility of the develop ment of some such scheme as has been put forward, it is on the evidence apparent that no one foresaw this scheme until the actual investigation began and there is no evidence whatever of any speculative rise of price until after the scheme had resulted in the notification. Though the special adaptability existed, it had no prospect of becoming an element of value apart from the scheme; its value therefore was the result of the scheme and to award compensation for it is to do that which cannot be done with reference to S.
24 (5) of the Act, i.e.
to take into account the increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired. It follows that the learned
Subordinate Judge erred in awarding compensation for the special adaptability of this land to supply drinking water to persons outside the respondents' estate."
And the decision of the Privy Council turns on the consideration of the legal question as to the amount of compensation receivable upon an interpretation of these provisions of the Act. It was the respondent before the Privy
Council who had taken the objection in the High Court as to the impropriety of the claim for compensation for value of the special suitabi lity of the land acquired for supplying drinking water as it was not taken in the application before the Collector, and no question arose before their Lpdships of the Privy Council as to the correctness of the High Court in distinguishing the case of the secretary of State v. C. R Subramania Ayyar. as leave was only granted to consider the error of the High Court in not following the correct principle for determining the compensation.
Accordingly, this question was res Integra and open for review. I may here observe that in Secretary of State v C R Subramania
Ayyar, the facts were altogether different as a claim for the costs of constructing walls and latrines was freshly made before the Court and entertained. It was in that context that emphasis was iasd on the fact that the objector should fully make out his case before the Collector and having once taken a position he should be made to be bound by it as his objection to the award in regard to the quantum of compensation receivable oy him The line of distinction drawn from the observations in Pramitha Nath
MUiih'ck Bahadur's case does not seem to follow as it then would not be a specific question referred for decision nor can it be regarded as a basis of valuation as it was a supplementary claim made for the first time in Court and not taken as an objection to the award before thi Collector. Again if according Co the
Privy Council case she jurisdiction only arises to answer the specific question then this could not be a matter of proce'dure only which could readily be included either by way of an amendment to the claim or other wise for decision.
In Profince of Bengai v. Ram Charidara (AIR 1944 Cal. 247), the objector before the Collector claimed Rs. 1,500/- as compensation for the trees whereupon this question was referred to the Court for decis on under section 18 of the Act. Thereafter he was allowed to enhance his claim from
Rs. 1.500/-, to Rs. 10,000 and he was accordingly awarded Rs. 36JO/- as being the fair marker value of the trees. An appeal,was taken to the Calcutta
High Court and it was contended on behalf of the
Province'of Bengal that the Court had no jurisdiction to allow the objector to amend his application after the matter had come before the Court. A Division Bench of the
Calcutta High Court, relying on the case of Pranmha Nath MaUick
Bahadur, held :
"That the only matter which was referred for the determination of the Court was whether the trees should bs valued at Rs. 40Q/- or at Rs I500/-, and on the principles laid down by the
Judicial
Committee of the Privy Coancil in 57 Cal 1148, the Court had no power to consider anything bayoad what had actually been referred to it. In these circumstances, I do not think that it was open to the Court to allow the claimant to amend the application after the matter had corns b.-fore the tribunal, because the amend ment had the effect of placing before the Court for consideration a matter which had not actually been referred to it within the meaning of S. 18 (lj, Land Acquisition Act."
Further in holding so. the language of section 18(1) was considered and it was held that the words "require that the matter be referred by the
Collector for the determination of the Court" merely mean that the point en which the Collector's award is disputed mav be referred to the Court at the instance of a claimant, and when such a dispute has been referred to the Court the scope of the inquiry is limited within the bounds of the dispute which had actually arisen before the Collector. This is how section 1«(1) has been construed as following the dictum laid down in Pramatha Nath Mullick's case. Here 1 may also highlight that the opinion of the Division Bench in the case of Reyenue Divisional
Officer, (supra), was canvassed against this proposition but it was distinguished on the ground that the decision in that case retted on the plane that in a prop»r
Secretary of State (AIR 1930 PC 64) and Vyrichena Namyana
Gajapatiraju v Revenue Divisional Officer Vizagapatam (AIR 1939 PC 98)
I may here respectfully point out that the decision of the learned single
Judge in
Secretary of State v. C. R. Subramaalfi Ayyar (AIR 1930
Madras 676), turned oa the interpretation of section 18 of the Act and applied to the facts of the case as they existed which, to the learned Judge appeared to be having restricted meaning so as to exclude a higher claim not preferred before the Collector as an objection to the award. If the
Division Bench in the
Province of
Bengal v.
P. L. Nun (AIR 1945
Cal.
312) had differed from the decision of another Division Bench of the same High Court then it should have referred the matter to the Full Bench without stating that the observations of the Judicial Committee were misread or misapplied. It was then that an authoritative decision could have been given as to which view was correct.
However, one thing is clear that the
Division Bench while deciding the case of Province of Bengal v.
Earn
Chandra Bhottka and anoiiieif (AIR 1944 Cai. 247) had distingui shed the case of Revenue Divisional Officer v. Sri
PLJ 1985 SC 339 [Appellate Jurisdiction] PLJ 1985 SC 339 [Appellate Jurisdiction] Present: aslam Ruz hussain & shafiur rahman, JJ BASHIRUDD1N and OthersPetitioners versus ADDITIONAL DISTRICT JUDGE and OthersRespondents, CPSLA No. 176 of 1985, decided on 18-2-1985. (i) Urban Rent Restriction Ordinance (W. P. Ord. VI of 1959)
S. 14Final decision of Rent Controller Re-opening of Res Indicate Principle ofApplicability ofCause of action on which second apolication based arising after disposal of previous proceed ingsHeld : Principle of res judicata not to apply. [P. 340Jv4 (ii) Urban Rent Restriction Ordinance (W. P. Ord. ¥1 of 159)
S. 14-Second application-Bar ofEjectment application filed on ground of default in payment of rent resulting in fasiursTenant, however, again committing default in payment of rent after dis missal of first ejectment application Held : Landlord not to be debarred from filing another ejectment application on same ground of default. [P. 340]5 1981 SCMR 528 ref. (iii) Urban Rent'Restriction Ordinance (W. P. Ord. VI of 1959)
S. 14Rent Controller Decision of Reopening of Plea of subletting not taken by landlord in earlier ejectment application- Held: Order of tenant's eviction on such ground (of subletting) to be effective notwithstanding dismissal of landlord's earlier application [P. 341]D (i») Urban Rent Restriction Ordinance (W.P. Ord, VI ef 1959)
S. 14Rent ControllerDecision ofRe-opening of Res judicata Principle ofApplicability ofLandlord found to be in dona fide need of more or better accommodation because of either increase in size of his family or his no longer remaining in occupation of oiher suitable premisesHeld: Requirement of landlord having substantially changed after dismissal of previous application, earlier application to constitute no bar to subsequent ejectment applications. [Pp, 340 & 341JC 198U CLC 1422 ref Mr. Muhammad Hussain Awan, Advocate Supreme Court instructed bv Mr. Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners. Date of hearing : 18-2-1985. order Aslam Riai rlussaiu, J. Bashiruddin and Nasiruddio, petitioners seek leave to appeal against the judgment of the Lahore Higfc Court, Lahore, dated 30-1-1985, dismissing their Writ Petition (No, i7to3/198.-). in a real matter. 1. The facts giving rise to the petition are, briefly, that the petitioners are tenants in a shop owned by Siraj Din, respondent No. 3. In May, 1980, the latter moved an application for their ev-ction from the shop before the Rent Controller, Sargpdha, on the grounds of (/) default in payment of rent ; (it) sub-letting the shop without permission of the landlord and (Hi) that the shop in question was ban a fide required by the landlord for his personal use. The application was resisted by the petitioners. fter considering evidence of the parties the learned Rent Controller rejected the plea of default, but upheld the pleas of ersonal requirement and subletting of the Shop without the permission c, therefore, directed their eviction from the shop in q The petitioners filed an appeal which was dismissed by the Additional District Judge, Sargpdha, vide judgment ated 6-4-1983. They thtn filed a Constitutional Petition before the High Court which met the same fate. Hence the present pitition. 3. It was vehemently argued by the learned counsel for the peti tioners that even earlier, in 1973, the respondent-landlord had sought eviction of the petitioners from the shop in question on the ground of personal need, but that application had been dismissed and, that, as such the subsequent application filed ia May, 1980, (out of which the present petit on has arisen) was barred in view of the provisions of section 14 of the Punjab Urban Rent Restriction Ordinance 1939, which reads as follows "14. Decision which hare become final not be to be reopened. The Controller shall summarily reject any application under sub section (2) or under sub-section (3) of section 13 which raises sub stantially the same issues as have been finally decided in a former proceeding under this Ordinance." We are, however, unable to agree with this submission. Through this section, the principle similar to that of res judicala is sought to be applied to proceedings before the nt Controller, but it s well established that principle of resjudi not apply where the cause of action on which the :ation) is based, has arisen after the disposal of ' For example where an ejectment ap und of default in payment of rent by the for himself or is found io be in occupation of other suitable premises at one time, may after some reasonable period of time be found to be in bonafidt need of more or better accommodation either because the size of his family has increased or his need has increased or he is no longer in occupation of another suitable premises. In such a case all that is to be seen the Rent Controller is whether the circumstances have not substantially changed after the dismissal of the previous application and whether in the existing circumstances the requirement of the landlord is bona fide. In case the finding is in the positive the earlier application will not constitute a bar to the second (or even a third) ejectment application. The same view was taken by the Peshawar High Court in Haji Malal Khan v. Mir Hassan (1980 CLC 1422) 4. It may also be mentioned that the plea of subletting had not been taken by the respondent landlord in the earlier ejectment petition filed in 1973. Obviously therefore this was a fresh ground which has been accept ed by the learned Rent Controller and upheld by the learned Aiditiona! District Judge. Therefore, the order of petitionsr's eviction on that round would be effective notwithstanding the dismissal of landlord's earlier application, which was based only on the ground of psrsonal need. 5. For the foregoing reasons we find no fores in this petition which is consequently dismissed. (TQM) Petition dismissed.
PLJ 1985 SC 341 [Appellate Jurisdiction] PLJ 1985 SC 341 [Appellate Jurisdiction] Prtsent : muhammad halebm, CJ ; aslam riaz hussain <fc shafiur rahman, JJ MUHAMMAD YASINAppellant versus THE STATERespondent Criminal Appeal No. K-19/80, decided on 9-4-1984. (i) Explosive Substances Act (VI of 1908)
S 3ExplosionMaliciously and unlawfully causing ofOffenceofExplosion endangering life caused in house of appellant-Such explosion not only blowing off fingers of appellant but also seriously injuring his minor son standing nearby-Likelihood of occurring of explosion at relevant time also not in knowledge of appellantHeld: Explosion having not been caused maliciously, appellant not to be found guilty of offence under S. 3 of Act. [Pp. 344 & 345]A. (ii) ExplosiTe Substances Act (VI of 1908)-
S 4 (b) Explosive substancePossession or control of with intent to endanger life or to cause serious injury to propertyOffence of IntentionProof ofRequirement ofHeld : Intention to endanger life or to cause serious injury to property to be either specifically established or facts from which presence of such intention to be reasonably drawn to be brought on record-No such facts brought on record in case Held : Possession of explosives by appellant not to fall within mischief of S. 4 (b). [P. 345]B (iii) Eiplosive Substances Act (VI of 1908)- S. 5Explosive substanceMaking or knowingly having posses sion or control ofOffence ofHeld' Strict proof of mala fide inten tion of person in possession of explosive not to be required (in order to attract provisions of S 5)Surrounding circumstances giving rise to reasonable suspicion regarding accused possessing explosine for no lawful object Held : Onus of showing such inference to be incorrect to lie on accusedFacts proved on record giving rise to such suspicion and appellant also giving no plausible explanation to dispe! itHeld : Appellant to be convicted under S. 5 of Act, [P.p 345 & 346JC, D & F (i) Crimioai Procedure Code (V of 182S) ,5 423 read with Explosive Substances Act (VI of 1908)Ss. 3, 4 (b) & 5Appellate CourtPower to alter convictionExercise of Appellant duly charged under S. 3, 4 (b) and 5 of Explosive Sub stances ActFact of possession as well as circumstances raising reasonable suspicion required by provisions of S. 5 of Act also duly proved in caseTrial Court, however, convicting appellant under Ss. 3 & 4 (b) without acquitting him of charge under S. 5~-Heid : Appellate Court to have sufficient power to alter conviction with or without reducing sentence, [Pp. 345 & 346] E & F (?) Explosive Substances Act (VI of 1908)
Ss. 3, 4(6) & 5See : Criminal Procedure Code (Voft8g) S. 423. [Pp. 345 & 346 }E & F Mr. Khalid M. Ishaqug, Advocate Supreme Court instructed by Mr. Nizam Ahmad, Advocate-on-Record for Appellant. Mr. K, A. Sattar Sheikh, .- .dditional A. G. Sind with Mr. Muzaffar Hussain, Advocate Supreme Lcurt for Respondent. Date of hearing : 24-8-1983, judgment Asiam Riaz Hussaio J.Muhammad Yasin, appellant, who was a cleaner in the PI A. was tried alongwith Muhammad Yousaf and Israr Ali (also an employee of the PIA), for offences under sections 3, 4 and 5 of the Explosive Substances Acts, 1908, 2. The facts giving rise to the case were as follows : Muhammad Yasin appellant was residing in Quarter No. S. 3. 144 situated in Saudabad, Karachi , aiongwith his wife Mst. Shamim Bano, his daughter and a minor son imran, aged 3 years. Mr. Abdul Baqi Batoch, a well known political figure was also staying with him as a guest. On 24-2-1975, at about 11 a.m. a loud explosion took place in the said quarter. At that time the appellant, his two children and his sister-m-law were present in the house, while his. wite Mst. Snamim Bano who was employed as k typist in some office had gone to work. The explosion attracted a number of persons including Anisur Rehman, a hotel keeper, whose hotel is situated at a distance of 100/150 paces. Some other persons including Buban Mirza, Muhammad Iqbal, Muhammad Wasi P. W. and his son Javaid had already collected there. Muhammad Yasm (appellant) has come out and was standing at the outer door of the quarter with his son Imran in his lap. The fingers of his right hand had been blown off and he was bleeding profusely. His son Imran had also suffered injuries and was unconscious. On inquiry by Anisur Rehman P. W , the appellant told him that a bomb had exploded in his quarter. He appeared to be confused and stated that some more bombs were lying in a basket in his quarter and that these should be taken out and thrown away. Some of the P. Ws. hurriedly go! a taxi and took Muhammad Yasin and his son to the Jinnah Hospital for treatment. Anisur Rehman PW informed the S.H.O. Muhammad Warial of P.S. Maiir. The S.H O. informed the D.S.P. Fazlur Rehman whose office was situated in the same premises. After making necessary entries in the Station Diary, the D S.P. and the S H O. rushed to the spot. As the outer door of the appellant's quarter was bolted from inside, a constable was sent into the house by seal! ng over the wall. He unbolted and opened the door from inside. On searching the quarter a basket containing about 7 explosives (4 round shaped bombs and 3 dynamite sticks) was found lying in one of the rooms. Pieces of the burst bomb were also recovered. The police also found the appellant's fingers sticking to one of the walls. These articles as well as the fingers were taken into possession, 3. As a result of the investigation the police also arrested two coaccused. They were charged alongwith appellant of conspiracy for manu facturing and possessing explosives and causing explosions. The appellant was further charged with possessing explosives and causing the explosion on the 24th of February, 1974. Judicial confession f Muhammad Yasin appellant was also got recorded wherein he stated that one Muhammad Yousaf, a member of the Jamat-e-Islami had given the basket in question to him for keeping it but never returned to take it back. It was stated further that on the fateful day he wanted to fix a nail in the wail of the house and took out one of the articles from the basket and used it for hitting the nail whereupon it exploded resulting injuries to him and to his son Imran. In the first place the confession is exculpatory and secondly the appellant went back on it at the trial. 4. The appellant and his co-accused were ultimately sent up for trial and charged under sections 3, 4 and 5 of the Explosive Substances Act, 1908. In support of it the prosecution produced some of the persons who had reached the house soon after the incident including Anisur Rehman (PW. 3). Muhammad Iqbal (PW. 5), Buban Mirza (PW. 6) and Muhammad Wasi (PW 7). It also relied on the testimony of Fateh Muhammad (PW. i ) Platoon Commander, Bomb Disposal, Karachi; recovery of the bag containing 7 live explosives from the appellant's quarter as well as appellant's blown away fingers : the judicial confession of the appellant and the medical evidence. 5. The appellant retracted from the confession and denied his guilt. He explained that earlier on the same day when Mr. Baqi Baloch had left his house, a person came and delivered a bag containing some object looking like biscuits to him for Mr. Abdul Baqi Baloch. He took the bag and kept it inside the house. His son (Imran), however, picked up the bag therefore, be imagined that the appellant caused explosion maliciously. As a matter of fact, from the evidence on the record it appears that he did not even know that the explosion was likely to occur at that time. The necessary ingredient of the offence are, therefore missing, with the result that the appellant could not have been found guilty of offence under section 3 of the Act. 10. Section 4 (b) of the Act makes it an offence to be in possession or in control of any explosive substance "with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan". The learned State Counsel has not been able to point out any material on the record to establish such intention. He argued that this should be inferred from mere possession of the explosives. We do not think luch an inference can be drawn in this case. The intention in question musi either be specifically established or such facts should be brought on record from which an inference of the presence of such intention can be reasonably drawn. But no such facts have been brought on the record in this case Consequently we feel that the possession of the explosives by the appellant in this case does not fall within the mischef of section 4 (b) either. 11. We are, of the view that the appellant's action falls within the mischief of section 5 of the Explosive Substances Act. The ingredients of the offence under this section are : (/) making or knowingly having in possession or under control : (i'») any explosive substances ; (Hi) in circumstances as to give rise to a reasonable suspicion that he is not making or d es not have it in his possession or under his control for a lawful object. It would be noticed that this section does not require strict proof of the mala fide intention of the person in possession of the explosive. It is enough if the surrounding circumstances are such as to give rise to a reasonable suspicion that the accused did not possess the explosive for a lawfull object. The inference is. of course, rebutable but the onus of showing that the inference is not correct lies on the accused. We are of the view that facts proved on the record of this case do give rise to such a suspicion and the appellant has not been able to give any plausible explana tion to dispel it, 12 .Learned counsel for the appellant, however, argued that since the appellant was impliedly acquitted of the charge under section 5, he cannot now be convicted and sentenced for the same, in the absence of any revision or appeal against his acquittal. We are not persuaded to agree with this submission. The accused was duly charged under the said section and had consequently been put on notice. The fact of possession as well as the circumstances raising reasonable suspicion required by the provision of section 5 were duly proved but since the learned trial Judge felt that graver and more serious offences, under sections 3 and 4 (b) of the Act, stood proved from the evidence on the record, which are punishable with much higher sentence than the one under section 5, he chose to convict him under the said sections, but he did not acquit the appellant of the said u /s 5. He merely omitted to award a sentence thereunder, probably in view of the provisions of paragraph 1 of section 7) PPC. As such it was not necessary that a revision or an appeal against the appel lant's acquittal should have been filed. Section 423 Cr, P C,, Sub-s. (1) (2), ives he appellate court Jsrfficient power to alter the conviction with or without reducing the ^sentence. We, therefore, lter the appellant's conviction from sections 3 land 4 (b) to one under section 5 of the Explosive Substances Act, 1908. However, in view of the fact that sentence for this offence is lesser than the offences for which the appellant as onvicted by the trial court, we reduce the sentence from 7 years R. I. to 3 years R. I. The sentence of fine is, however, aintained. The appeal is dismissed with the above modification. (TQM) Sentence reduced.
PLJ 1985 SC 346 [Appellate Jurisdiction] PLJ 1985 SC 346 [Appellate Jurisdiction] Present : muhammad afzal zullah, nasim hasan shah & mian BURHANUDDIN KHAN, JJ Messrs. AL-IBLAGH LIMITED, Lahore through its Managing Director Appellant versus COPYRIGHT BOARD, Karachi and OthersRespondents Civil Appeal No. 42 of 1983, decided on I3-M985. (i) Copyright Ordinance, 1962 (XXXIV of 1962)-
Ss. 45, 46 & 77 read with Provisional Constitution Order (CMLA's 1 of 1981)-Art. 9 and Constitution of Pakistan , 1973 - Art. 199 Copyright BoardOrder ofChallenge toHigh CourtJurisdic tion ofCopyright Board set up by Federal Government for whole of Pakistan performing functions in relation to affairs of Federation in all provincesHeld : Any order passed by Board or proceeding taken by it in relation to any person in any of four provinces of Pakistan to give High Court of Province, in whose territory order affects such person, jurisdiction to hear case. [P. 350j.fi PLD 1968 SC 387 ref. (ii) Copyright Ordinance, 1962 (XXXIV of 1962)
Ss. 45, 46 & 77Copyright BoardOrder ofAppeal againstCourtJurisdiction ofCopyright Board empowered to regulate its own procedure including fixing of place of its sittingsHeld : Board being competent to sit in any part of country, appeals against its decisions (in cases not decided by it on appeal under S. 76), to be pr ferred to High Court within whose jurisdiction appellant actually and voluntarily resides or carries on business or personally works for gain. [P. 349J/4 (iii) Provisional Constitution Order (CMLA's 1 of 1981)
Art. 9-See :
Copyright
Ordinance, 1962
(XXXIV of 1962)
Ss. 45, 46 & 77.
[P. 350]
B
Mr. Irshad Ahmad Qureshi, Advocate Supreme
Court and
Ch. Qamarud-Din Meo, Advocate-on-Record (absent) for Appellant.
Mr. Munir A. Sheikh, Deputy Attorney
General for Respondent
Nos, 1 and 2.
Mr. Wajid Hussain, Advocate-on-Record
(absent) for Respondent
No. 3.
Date of hearing :
13-1-1985 judgment
Nasim Hasan Shah, J.--A dispute has arisen between the appellantcompany, namely, M/s Al-lblagh Limited, Lahore (through its Managing
Director, Mr. Hafeezur Rehman Ahsan) and respondent No. 3, namely, Syed Haider Farooq
Maudoodi (one of the successors-in-interest of Maulana
Syed Abul A'la
Maudoodi) about the copy right in respect of aSeries of
Cassettes containing the lectures and sermons delivered by the late Maulana
Syed A'la Maudoodi.
Mr. Hafeezur Rehman Ahsan (Managing Director of the appellantcompany) says that he is an. admirer of the late Maulana and claims not only to have attended all the lectures delivered by the late Maulana but to have tape recorded them at his own initiative and expense.
From the said pre-recorded tapes of the sermons, be has also complied two books entitled
"Kitab-us-Saum" and
"Fazail-Quran" and had got them registered with the respondent
No.
2 vide
Nos.
2?59 Copr.
and 2360-Copr.
After the said demise of
Maulana
Maudoodi, he formed the appellant-company and on its behalf submitted eleven separate applications to the
Registrar of Copyrights, Karachi, for registration of a Series of
Cassettes entitled
"Paigham-e Qjran
Cassettes
Series" which had also been prepared by him from tne afore-stated pre-recorded tapes of the sermons by Maulana Maudoodi respecting
Tafseer of eleven
Surahs of the
Holy Quran.
The applications of registration were, however, dismissed by the
Registrar vide order dated 31-3-1982.'
The appellant-company then preferred an appeal under Section 76 of the Copyright Ordinance before the Copyright
B.>ard, Karachi
.
constituted under Section 45 of the
Copyright Ordinance, 1962.
The hearings of the appeal, in view of the request of the parties as well as for the convenience of three of the members of the Board, who hailed from Lahore and Rawalpindi, admittedly took place at Lahore, However, the final order dated 20-12-19
PLJ 1985 SC 351 PLJ 1985 SC 351 [Appellate Jurisdiction] Present : aslam riaz hussain & shafiur rahman, JJ MUHAMMAD RAFlQ-Petitioner versus THE STATERespondent Cr. PSLA No. 55 of 1985, decided on 26-2-19«5. (i) Pakistan Penal Code (XLV of 1860)- S. 162 read with Pakistan Criminal Law Amendment Act, 1958 (Act XLV of 1958)S. 5Taking gratification to influence public servantOffence ofSpecial JudgeTrial byHeld : Offence under S. 162, PPC though not committed by public servant same to be exchfsi vely triable by Special Judge, Anti-Corruption Petitioner, admittedly ro public servant, demanding and accepting gratification to influence PatwariHeld : Special Judge rightly tried petitioner for offence committed under S. 162, PPC. [P. 354 ]< 4 ( it ) Pakistan Criminal Law Amendment Act, 1958 (Act XLV of 1958)
S. 5 See: Pakistan Penal Code (XLV of 1860 ) S. 162. ' [P. 353 ]A Mr Talib H. Rizvi, Advocate, Supreme Court instructed by Mr. S, AH Imam Naqvi, Advocate-on-Record for Petitioner. Date of hearing : 26-2-1985. ordbr Aslam Riaz Hussain, J.Muhammad Rafique, petitioner seeks leave to appeal against the judgment dated 23-12-1984 of a learned Single Judge of the Lahore High Court, dismissing his Criminal Appeal (No. 1050 of 1980). 2. Facts leading to the petition are, briefly, that Muhammed Rafique petitioner who was not a Government employee was working as an assistant to Abdul Hameed Patwari in order to learn the work. He demanded Rs. SO/- as i'legal gratification from Sharif PW !. The latter, however, reported the matter to the police. A raiding party was constituted under Ch. Faqir Muhammad, Magistrate, PW . 3. Sharif P. W. 1^ (complainant) handed over currency notes worth Rs. 50/- to the petitioner as promised. Immediately thereafter th ? tainted currency notes were recovered by the Magistrate from the petitioner. When examined by the magistrate, after the raid, the accused/petitioner admitted that he had received the tainted currency notes fromSharif, P.W. for giving the same to Abdul Hameed, Patwari, but explain the said money was to be given to the said Patwari as fee, 3. The accused-petitioner was sent up for trial before learned Special Judge, Anticorruption, Sahiwal for an offence u/s 162 PPC, At the trial the prosecution produced 4 witnesses in support of its case. The accusedpetitioner denied his guiit and produced 4 witnesses in bis defence. 4. The learned trial court however, believed the prosecution evidence and convicted the petitioner u/s 162 PPC and sentenced him to one year R. I., vide his judgment dated 28-9-1980. The petitioner then filed an appeal in the High Court, which was dismissed vide the impugned judg ment. The petitioner has now approached this Court for rant leave to appeal. 5. It was contended by the petitioner's counsel that since he (the petitioner) was admittedly not a ' ublic servant' and was merely assisting the Patwari in his private capacity in order to learn the work, the learned Special Judge Anti-Corruption did not have jurisdiction to try the petitioner and that he could only have been tried by a magistrate of he first class as provided in the 1st Schedule to the Criminal Procedure Code. In support of this contention he relied on Syed Ziaul Hassan Zaidi v. The State (1971 P. Cr. LJ 1056 Kar.) and Wahid Bukfash v. The State (1976 P Cr. L J 361-Lah), wherein it has been held that where the accused person is neither a public servant nor is he shown to be erforming dutiei in the capacity of a public servant at the time of alleged offence, a Speci! Judge, Anti-Corruption had no jurisdiction to try him for offences under under section 161 PPC or Section 5 (2) of the Prevention of Corruption Act, 947. 6. We are afraid the contention raised by the Seamed counsel for the petitioner is misconcieved and the above noted two judgments referred to by him do not advance the petitioner's case because in those cases the accused were not tried on a charge under section 162 PPC as in the present case but were tried and convicted under section 161 PPC or Section 5(2) of the Prevention of Corruption Act, 1947. The general law, making bribery, corruption and demanding or accepting illegal gratification punishable offences are contained in Sec tions 161 to 166 of the PPC. It would be noticed that most of the offences mentioned in the Schedule relating to demand or receipt of .bribe by public servants. But a reading of Sections 162 and i63 PPC would show that they make it punishable even for a private person to take gratification for himself or for any other person, as a motive or reward for exercising influence with a public servant so as to induce him to show favour to the person from whom bribe is received. 7. Prevention of Corruption Act, 1947, however, a special legislative measure to curb bribery and corruption amongst the public servants. As ' is clear from the preamble of the said Act, it was enacted to make effective provisions for the prevention of bribery and corruption. The offences punishable under that Act are contained in section 5(1) of the Act They only relate to demand or acceptance or bribe by public servants and are punishable under section 5(2). The Pakistan Cnmiiial Law (Amendment) Act (.Nu, XL) of 1958, which is yet another special law relating to such offence, was enacted for providing procedure for -'speedier trial and more effective punishment" of persons accused of such offences. Section 2(6) of ihs said Act defines 'public servants'. Section 3 provides that Special Judges may be appointed to try offences punishable specified in the Schedule to the said Act, while section 5(1) provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, or any other law, ai! offences specified in the Schedule to the said Act shall be triable exclusively by a Special Judge. A look at the Schedule would show that clause (a) thereof includes offences punishable, inter alia, under sections 161 to 166 PPC and clause (<} mentions offences punishable' under the Prevention of Corruption Act, 1947, as also attempts and abetments and conspiracies. 8. It is pertinent to note that in the present case the petitioner was tried for an offence under section 162 PPC, which reads as follows;'162. Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any o her person, any gratification whatever as a motive or reward for indcing, by corrupt or illegal means, any public servant to do or to forbear to do any official act, or in the exercise of the official functions, or to render or attempt to render any service or disservice to any person with the Central or Provincial Government or Legislature, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both". Now as already observed Section 5(1} of the Pakistan Criminal Law (Amendment) Act (No. XL) of 1958, alongwtth the Schedule thereto clearly shows that an offence under section 162 PPC though not committed by a public servant, is exclusively triable by a Special Judge, Anti-Corruption. As such the petitioner, who was not a public servant, was rightly tried by a learned Special Judge for offence committed under section 162 PPC. tn view of the above discussion the petition is dismissed as having no force. (TQM) Petition dismissed, PLJ 1985 SC 353 [Appellate Jurisdiction Prestnl : aslam riaz hussain & shapjur rahmvs, J i RIAZUL HAQ-Petitioner versus Seth KHUSHl MUHAMMAD and AnotherRespondents CPSLA No. 618/84, decided on 17-2-N85. (i) Punjab Local Councils (Election Petition) Rales. 1979 R. 16 (1) read with Provisional Constitution Order (CMLA's I oi 19Ssl! Art, 9 and Constitution of Pakistan, 1973Art. 185Equalitv oi" votesDecision in case ofDrawing of lots by Election Tribunal Exercise of power ofBoth candidates found to have secured equal number of votes - Held : It being mandatory for Election Tribunal to if,?//draw lots, order of Tribunal remanding case to Returning Officer for drawing of lots to be without lawful authority, [P. 356J2J (ii) Punjab Lccal Cooncils (Election Petitions) Rules, 1979
R. 16 (1) read with Provisional Constitution Order (CMLA's i of 1981)Art. 9, Constititution of Pakistan , 1973Art. 185 and Punjab Local Councils (Election) Rules, 1979R. 40 (7)Equality of votes Decision in case otDrawing of lotsEffect ofBoth candidates securing equal number of votesElection Tribunal instead of itself drawing lots, remanding case to Returning Officer for such drawing of lotsHeld : Participation of respondent in drawing of lots by Re turning Officer to confer no jurisdiction on latterHeld further : High Court to be justified in holding such exercise by Returning Officer to be illegal and without lawful authority. [P. 3S5]/4 (iii) Constitution of Pakistan , 1973
Art. 1S5 See : Punjab Local Councils (Election Petitions) Rules, 1979R. 16 (1). [Pp. 455 & 356jX & 8 ( if ) Provisional Constitution Order (CMLA's 1 of 1981) Art. 9~See: Punjab Local Councils (E-ection Petitions) Rules 1979 R. 16 (1) [Pp. 3 ?5 & 356J4 & B Ch. Khurshid Ahmad, Advocate Supreme Court instructed by Mr. Tanvir Ahmad, Advocate-on-Record for Petitioner. Mr. Farooq Chaudhary, Advocate Supreme Court instructed by Mr. Muhammad Aslam, Advocate-on-Record for Respondent No. 1. Date of hearing : 17-2-1985, order Asiam Riaz Hussain, J.This petition by Riazul Haq is directed against the judgment of the High Court dated 19-2.1985, accepting respondent's writ petition (No. 680/84). Facts giving rise to the present petition, briefly, are that Riazul Haq petitioner, Khushi Muhammad, respondent No. 1 and 2 others contested the election in 1983 to a seat in the Municipal Committee, Okara, from Ward No. 5, During the polls 259 men and 242 women voted in fovour of Riazu! Haq. Out of these 2 votes were discarded as invalid leaving a total of t99 votes in his favour. As against this 267 men and 232, women voted in favour of Khushi Muhnmmad respondent No. 1. As such total votes cast in his favour were aiso 499 The Returning Officer is, however, stated to have opened the packet of the 'tendered' ballot apers and declared one of the votes cast in favour of Khushi Muhammad responden! as valid , with the result that he was found to have secured one vote more than the peti tioner and was therefore declared to be successful. 2. Fceiing aggrieved Riazul Haq petitioner challenged the respondent's election through an Election Petition. The Election Tribunal, after due inquiry into the matter, heid that since both the candidates had secured equal votes (if. e. 499 each) and that the Returning Officer should have proceeded to draw lots as provided by Rule 40 (7) of the Punjab Local Government Election Rules, 1979. It then remanded the case to the Returning Officer for drawing of loti. It may be mentioned that the petitioner had also taken a number of other objections in his election petition but his learned counsel states that after the Election Tribunal had reached the above noted conclusion he (the counsel) gave yp the other objections, 4. On remand the Returning Officer proceeded with the draw ,g ' lots, «"bich turned up in petitioner's favour, who was therefore der ared
successful, Khushi Muhammad respondent, however, cbaiier-' the r M jit through a writ petition and also filed an Election petitioi "" ele ~on petition was dismissed on 16-3-1984, while his writ petition was aw % j by the High Court vide the impugned judgment dated 15-4-1984, li the ground that after giving the finding that both the candidates had tained equal number of votes, the learned Election Tribunal should ha 1 itself proceeded to dr«w lots as provided by Rule 16 (!) of the Punjai Local Councils (Election Petition) Rules, 1979, As a result the drawing oi lots by the Returning Officer under Rule 40 (7) of the Punjab Local Councils (Election) Rules, !979 and declaration of the petitioner as successful candidate was held by the High Court to be without lawful authority and of no legal effect, and the Election Tribunal was directed to draw the lots itself. Feeling aggrieved '.be petitioner has filed the present petition for leave appeal. We have beard the learned counsel for the petitioner at length and have gone through the impugned judgment, 5. The petitioner's counsel urged that Khushi Muhammad having taken part in the lots before the Returning Officer should not be heard to say that lots should have been drawn by the Election Tribunal itself He also urged that the Election Taibuna! had rightly directed the Returning Officer to draw lots as, primarily, it was the duty of the eturning Officer under Rule 40 (7) of the Punjab ' Local Councils (Election) Rules, 1979. 6. We are not inclined to agree with these contentions. The participa lion of the respondent in the drawing of lots by the Returning Officer did! not confer any jurisdiction on the latter and we are of the view that the! H ; gh Court was justified in holding that this exercise by the Returning! Officer was illegal and without lawful authority. 7. It would be noticed that Pule 40(7), which provides for the declaration of the result bv the 'Returning Officer' by drawing of lots, occurs in the Punjab Local Government (Election) Rules, 1979. These rules deal with the procedure to be foliowed for the conduct of elections, from the stage of supply of electoral rolls and filing of omination papers »pto the stage of eclaration of results and taking oath by the members, On the other hand Rule 16 (I), which deals with the powers oi the Election Tribunal So declare the result of an election to a seat by drawing of lots, occurs in the Punjab Local Councils (Election Petition) Rules, 1979. These rules deal with the subsequent itage, which begins after the results have been declared and provide for filing of election petitions before the Election Tribunals constituted under section 25 of the Punjab Local Government Ordinance, 1979, as also the procedure to he followed by the Election Tribunals in deciding such petitions. Rule 16 (!) reads as follows . ' c 16, Decision in ease of eqaality of votes : (1) Where after the conclusion of the trial, it appears that there is an equalitjof votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Tribunal shall draw a lot in respect of such candidates and the candidate on whom the lot falls shall be deemed to have received the highest number of votes entitling him to be declared elected". Note : Underlining is ours). The use of the word £ sha!!' in this rule makes it amply clear that It is mandatory for the Election Tribunal to itself draw lots when both candi dates are found to have secured equal number of votes. As such the High Court has rightly held that the order of the Election Tribunal remanding the case to the Returning Officer for drawing of iots was without lawful authority. In view of ihs above discussion we find no force in the petition which is consequently dismissed. (TQM) Petition dismissed.
PLJ 1985 SC 353 [Appellate Jurisdiction PLJ 1985 SC 353 [Appellate Jurisdiction Prestnl : aslam riaz hussain & shapjur rahmvs, J i RIAZUL HAQ-Petitioner versus Seth KHUSHl MUHAMMAD and AnotherRespondents CPSLA No. 618/84, decided on 17-2-N85. (i) Punjab Local Councils (Election Petition) Rales. 1979 R. 16 (1) read with Provisional Constitution Order (CMLA's I oi 19Ssl! Art, 9 and Constitution of Pakistan, 1973Art. 185Equalitv oi" votesDecision in case ofDrawing of lots by Election Tribunal Exercise of power ofBoth candidates found to have secured equal number of votes - Held : It being mandatory for Election Tribunal to if,?//draw lots, order of Tribunal remanding case to Returning Officer for drawing of lots to be without lawful authority, [P. 356J2J (ii) Punjab Lccal Cooncils (Election Petitions) Rules, 1979
R. 16 (1) read with Provisional Constitution Order (CMLA's i of 1981)Art. 9, Constititution of Pakistan , 1973Art. 185 and Punjab Local Councils (Election) Rules, 1979R. 40 (7)Equality of votes Decision in case otDrawing of lotsEffect ofBoth candidates securing equal number of votesElection Tribunal instead of itself drawing lots, remanding case to Returning Officer for such drawing of lotsHeld : Participation of respondent in drawing of lots by Re turning Officer to confer no jurisdiction on latterHeld further : High Court to be justified in holding such exercise by Returning Officer to be illegal and without lawful authority. [P. 3S5]/4 (iii) Constitution of Pakistan , 1973
Art. 1S5See : Punjab Local Councils (Election Petitions) Rules, 1979R. 16 (1). [Pp. 455 & 356jX & 8 (if) Provisional Constitution Order (CMLA's 1 of 1981) Art. 9~See: Punjab Local Councils (E-ection Petitions) Rules 1979 R. 16 (1) [Pp. 3?5 & 356J4 & B Ch. Khurshid Ahmad, Advocate Supreme Court instructed by Mr. Tanvir Ahmad, Advocate-on-Record for Petitioner. Mr. Farooq Chaudhary, Advocate Supreme Court instructed by Mr. Muhammad Aslam, Advocate-on-Record for Respondent No. 1. Date of hearing : 17-2-1985, order Asiam Riaz Hussain, J.This petition by Riazul Haq is directed against the judgment of the High Court dated 19-2.1985, accepting respondent's writ petition (No. 680/84). Facts giving rise to the present petition, briefly, are that Riazul Haq petitioner, Khushi Muhammad, respondent No. 1 and 2 others contested the election in 1983 to a seat in the Municipal Committee, Okara, from Ward No. 5, During the polls 259 men and 242 women voted in fovour of Riazu! Haq. Out of these 2 votes were discarded as invalid leaving a total of t99 votes in his favour. As against this 267 men and 232, women voted in favour of Khushi Muhnmmad respondent No. 1. As such total votes cast in his favour were aiso 499 The Returning Officer is, however, stated to have opened the packet of the 'tendered' ballot apers and declared one of the votes cast in favour of Khushi Muhammad responden! as valid, with the result that he was found to have secured one vote more than the peti tioner and was therefore declared to be successful. 2. Fceiing aggrieved Riazul Haq petitioner challenged the respondent's election through an Election Petition. The Election Tribunal, after due inquiry into the matter, heid that since both the candidates had secured equal votes (if. e. 499 each) and that the Returning Officer should have proceeded to draw lots as provided by Rule 40 (7) of the Punjab Local Government Election Rules, 1979. It then remanded the case to the Returning Officer for drawing of loti. It may be mentioned that the petitioner had also taken a number of other objections in his election petition but his learned counsel states that after the Election Tribunal had reached the above noted conclusion he (the counsel) gave yp the other objections, 4. On remand the Returning Officer proceeded with the draw ,g ' lots, «"bich turned up in petitioner's favour, who was therefore der ared
successful, Khushi Muhammad respondent, however, cbaiier-' the r M jit through a writ petition and also filed an Election petitioi "" ele ~on petition was dismissed on 16-3-1984, while his writ petition was aw % j by the High Court vide the impugned judgment dated 15-4-1984, li the ground that after giving the finding that both the candidates had tained equal number of votes, the learned Election Tribunal should ha 1 itself proceeded to dr«w lots as provided by Rule 16 (!) of the Punjai Local Councils (Election Petition) Rules, 1979, As a result the drawing oi lots by the Returning Officer under Rule 40 (7) of the Punjab Local Councils (Election) Rules, !979 and declaration of the petitioner as successful candidate was held by the High Court to be without lawful authority and of no legal effect, and the Election Tribunal was directed to draw the lots itself. Feeling aggrieved '.be petitioner has filed the present petition for leave appeal. We have beard the learned counsel for the petitioner at length and have gone through the impugned judgment, 5. The petitioner's counsel urged that Khushi Muhammad having taken part in the lots before the Returning Officer should not be heard to say that lots should have been drawn by the Election Tribunal itself He also urged that the Election Taibuna! had rightly directed the Returning Officer to draw lots as, primarily, it was the duty of the eturning Officer under Rule 40 (7) of the Punjab ' Local Councils (Election) Rules, 1979. 6. We are not inclined to agree with these contentions. The participa lion of the respondent in the drawing of lots by the Returning Officer did! not confer any jurisdiction on the latter and we are of the view that the! H ; gh Court was justified in holding that this exercise by the Returning! Officer was illegal and without lawful authority. 7. It would be noticed that Pule 40(7), which provides for the declaration of the result bv the 'Returning Officer' by drawing of lots, occurs in the Punjab Local Government (Election) Rules, 1979. These rules deal with the procedure to be foliowed for the conduct of elections, from the stage of supply of electoral rolls and filing of omination papers »pto the stage of eclaration of results and taking oath by the members, On the other hand Rule 16 (I), which deals with the powers oi the Election Tribunal So declare the result of an election to a seat by drawing of lots, occurs in the Punjab Local Councils (Election Petition) Rules, 1979. These rules deal with the subsequent itage, which begins after the results have been declared and provide for filing of election petitions before the Election Tribunals constituted under section 25 of the Punjab Local Government Ordinance, 1979, as also the procedure to he followed by the Election Tribunals in deciding such petitions. Rule 16 (!) reads as follows . ' c 16, Decision in ease of eqaality of votes : (1) Where after the conclusion of the trial, it appears that there is an equalitjof votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Tribunal shall draw a lot in respect of such candidates and the candidate on whom the lot falls shall be deemed to have received the highest number of votes entitling him to be declared elected". Note : Underlining is ours). The use of the word £ sha!!' in this rule makes it amply clear that It is mandatory for the Election Tribunal to itself draw lots when both candi dates are found to have secured equal number of votes. As such the High Court has rightly held that the order of the Election Tribunal remanding the case to the Returning Officer for drawing of iots was without lawful authority. In view of ihs above discussion we find no force in the petition which is consequently dismissed. (TQM) Petition dismissed.
PLJ 1985 SC 356 PLJ 1985 SC 356 [Appellate Jurisdiction] Present : muhammad afzal zullah & nasim hasan shah, JJ GHULAM SAD1Q and AnotherPetitioners versus MUKHTIAR AHMED and OthersRespondents Criminal Petition No. 2-P. of 1984, decided on 24-3-1984. (i) Criminal Procedure Code (V of 1898)
S. 561/A read with Constitution of Pakistan, 1973Art. 185High CourtInherent jurisdiction ofExercise ofOther more appro priate remedies available to petitioners to secure complete and proper justice in caseHeld : Exercise of inherent jurisdiction with riew to securing ends of justice not to be served in facts and cir cumstances of caseCivil court (only) competent to properly and finally, adjudicate upon rights of parties in property in dispute Htld : Resort to High Court with view to quaih order of Additional District Judge and thus to get revived interim order (of Magistrate) regarding custody of property to be hardly justified. (ii) Constitution of Pakistan , 1973 -Art. 185-See Criminal Procedure Code (V of 1898)-S. 561A. [-P 3S9]A Mr. M. Bilal, Advocate Supreme Court, Mr. Samiullah Khan, Advocate Supreme Court and Mr. Qasim Imam, Advocate-on-Record (absent) for Petitioners. Mr. Abdur Rehman Khan, Advocate Supreme Court (absent) & Mr. Nur Ahmad Khan, Advocate-on-Record for Respondent No. 1. Date of hearing : 24-3-1984. order Nasim Hasan Shah, J. A registered Firm, by the name of United Presstressd Concrete Products, Peshawar owned a factory comprising of building, stores and offices etc. situate in Small Industries Estate, Kohat Road, Peshawar consisting of the following 4 partners : (1) Mr. Zahid Hussain son of Mehr Ali. (2) Mrs. Tahira Sadiq wife of Ghulam Sadiq. (3) Mrs, Khalida Anwar wife of Muhammad Anwar. (4) Mrs. Farida Sahib Din wife of Mr. Sahib Din. An areement to sell was entered into between Mr. Zahid Hussain, aforesaid and one Mr. Muktbiar Ahmad, RespondentNo. 1 on 20-1-1983, whereby Mr. Zabid Hussain agreed to sell trie factory premises in question to Mr. Mukhtiar Ahmad, aforementioned in consideration of Rs. 3,70,000/-. A sum of Rs. 1,50 OOO/-. was received by the former as earnest money, while the balance amounting to Rs. 2,20,000/- was to be paid by Mr. Mukhtiar Ahmed, Respondent No. 1 by the 31st March, 1983. In the event of default on his part, it was stipulated in the agreement that a sum of Rs. 50,UOO/- shall be forfeited out of the earnest money but in case of non-performance of the contract by the Vendor, he was to pay a similar sum, by way of penalty to the vendee. Mukhtiar Ahmad, Respondent No. 1, it is alleged, did not perform his agreement. Nevertheless, he tried to take the forcible possession of the factory in question and an attempt in this connection was made on 1-7-1983. Whereupon the husband of Pe titioner Mo. 2, Ghulam Sadiq, lodged a report with the Police Station Bhana Mari, Peshawar, on the basis of which a case was registered under Section 448/147 PPC vide F.I.R. No. 24J against Mukhtiar Ahmad, Respondent No. 1 The Local Police took possession of the factory and the Investigating Officer visited the spot and put his locks on it. The petitioners submitted an application to the lllaqa Magistrate on 6-7-1983 for restoration of the premises in question from the custody of the police The application was referred to S.H.O. Bhana Mari, Peshawar, for report and the Investigating Officer in his report, affirmed that the petitioners were in possession of the disputed premises until he placed his "locks" on the premises. He also stated in his report teat the local police bad no objection if the possession was delivered to the petitioners. Oa th,e basis of the said report of the Investigating Officer, the learned Ilaqa Magistrate, by his order dated 10-7-1983, directed that the possession of the premises should be handed over to the petitioners, subject to their furni shing security in the sum of Rs, 5,00.000'-. Aggrieved by the above order, M skhtiar Ahmad, Respt. No. 1. filed a revison on 17 7-1983 under Section 4.VM ct, P. C, in the Court of the Additional Sessions Judge-II, Peshawar, whereupon he suspended the operation of the order of the Ilaqa Migistrate dated 10-7-1983 and after hearing arguments of both the parties findlly accepted the revision petition of Mukhtiar Ahmad, Respondent No. 1 observing inter-alia, that he found no warrant for the elaiji of the petitioners that the order passed by the Magistrate dated 10-7-1983 fell within the purview of Section 516A read with Section 523 Cr. PC. He, therefore, set aside the order of the learned Ilaqa Magistrate dated 10-7-1983 by his order dated 10-10-1983. Dissatisfied with the above order of the learned Additional Sessions Judge, the petitioners filed a petition under Section 561 A Cr, P. C. for the quashment of ths order dated 10.10-1983 passed.by the learned Additional Sessions Judge before the Peshawar High Court. This matter was heard by a learned Single Judge of the said Court, before whom a preliminary objection was raised to the effect that a second revision is not competent because the powers of the High Court as well as of the Sessions Court in regard to revisions were the same. The learned Judge found that the learned counsel for the petitioners could not satisfy him on the point of law. Accordingly, he, without touching the merits of the case, held that the petition filed by the petitioners was misconceived and dismissed it, vide his order dated 8-2-1984. Hence this petition for leave to appeal. Mr. M. Bilal learned counsel for the petitioners, in support of this petition for leave to appeal, has submitted that the view of the learned Judge in the High Court was not correct that once the Sessions Court had exercised jurisdiction under Section 439A Cr. P C., a second revision in the High Court was not competent. He submitted that the High Court could still under its inherent jurisdiction under Section 361A Cr. P. C., correct any error that might exist in the order oassed by the Sessions Judge. He relied upon Perraiz-ur-Rehman v. Muhammad Hussain etc. (1980 P. Cr. L J. 3) and Muhammad Baknsh v. Iqbal Ahmed & the State (N.L.R. 1980 Cr. Lhr. 176), in support of his submissions. Section 561A Cr. P. C., on which reliance has placed reads as follows : "S. 561A : Saving of inherent power of High Court.Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Cod« ; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". The learned counsel relied upon the last part of Section 561A to contend that the High Court could have interfered in this case. He pointed put that the High Court is empowered to interfere in a case, under its inherent powers "to secure the ends of justice". The High Court in this case, however, had overlooked this aspect of the matter. In this connection, it is to be noted that in this case the dispute is only with regard to an interim order passed by a Magistrate, whereas the actual dispute between the parties can be settled only if the rights of the parties in the property are properly and finally adjudicated ,pon. This adjudication can be done by proceedings in a Civil Court . In these circumstances, the resort to the High Court with the view that it should exercise its inherent jurisdiction to quash the order of the Additional Sessions Judge, so that an interim order regarding the custody of the property is revived is hardly justified. Indeed the exercise of the inherent jurisdiction with the view to securing the ends of Justice would not be served, in the facts and circumstances of this case, as other more appropiate remedies are available to the petitioners to secure complete and proper justice in this case. This petition must, therefore, fail and is dismissed hereby, leaving the parties to avail of any other available remedy, if so advised. (TQM) Petition dismisssed.
PLJ 1985 SC 359 [Sbariat Appellate Jurisdiction] PLJ 1985 SC 359 [Sbariat Appellate Jurisdiction] Present : justice muhammad afzal zullah, chairman ; nasim hasan shah & maulana muhammad taqi usmani, JJ Mauhi HAZOOR BAKHSAppellant versus THE STATERespondent Criminal Appeal No. 14 (S) of 1983, decided on 25-3-1985. (i) Criminal Procedure Code (V of 1898) S. 540 Material witness /^-examination ofNon-compliance with mandatory provisionsEffect ofWitness changing three positions during same trialTrial court contravening mandatory provisions of law without justifiable cause in not examining such witness under S. 540, Cr. P. C.Conviction of appellant also mainly based on statement of such witnessHeld : Non-compliance with mandatory provision in S. 540, Cr. P.C. to cause very serious prejudice to accused. [Pp. 364 & 365]£ & C PLJ 1984 SC 192 ref. (H) Pakistan Penal Code (XLV of I860)
S 377 read with Constitution of Pakistan, 1973 Art. 203F (2-A)SodomyOffence ofConviction forUnreliable witness Testimony ofEffect ofConviction mainly based on statement of alleged victimSuch witness not disclosing his liaison with appellant for long time prior to his disappearanceWitness allegedly going around with appellant to far off places without disclosing fact of his being kept as victim by appellant to any bodyThree position! changed by witness during same trial also making him unreliable Held : Infirmity in statement of such witness not to be overcome by reference to any other reliable evidenceHeld further : Charge of sodomy having also failied besides kidnapping and abduction, appel lant to be entitled to acquittal. [Pp 364 & 365]/4 & E PLD 1954 FC 197 &PLD 1956 FC 171 re/. (iii) Criminal Trial
WitnessUnreliable Three positions changed by witness duringsame trial Conviction of appellant also mainly based on statement of such witnessHeld : Fact of witness having changed three positions during same trial to make him unreliable. [P. 365J0 (iv) Constitution of Pakistan , 1973
Art. 203F (2-A)See : Pakistan Penal Code (XLV of I860) S. 377. [Pp. 364 & 365]^ & E Rao M. Yousaf Khan, Advocate Supreme Court for Appellant. ttafiz S. A. Rehman, Advocate Supreme Court for State. Date of hearing : 25-3-1985. judgment Muhammad Afzal Zullab, Chairman.This appeal through leave of this Court is directed against judgement dated 2-4-1983 of the Federal Shariat Court ; whereby on a criminal appeal the conviction of the appel lant under Section 377 P.P.C. with sentence of 10 years' R. I. and a fine of Rs. 1000/- was upheld ; however the conviction of the appellant and one Sabir All under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (No. VII) of 1979, was set aside. The prosecution case as contained in the deposition of Mohammad Sharif P. W. 6, who is the alleged victim, is as follows : "I am student of Vllth class,. After school hours I used to learn Quran from accused Qari Huzoor Bux Accused Huzoor Bux present in court is the same. Accused Huzoor Bux used to cut dirty jokes with me and on one night therefore, accused Huzoor Bux took me to a public meeting. Since it became late in night therefore, accused Huzoor Bux took me to his Hujra and made me to sleep on his cot with himself and committed sodomy on me. Thereafter he took oath from me on Holy Quran by keeping my hand on the Quran that 1 will not disclose this fact to any body otherwise he will beat me harshly. Due to oath on Quran and fear I did not disclose this fact to my parents, family members or anybody else. After 7 or 8 days accused Huzoor Bux again called me at about I.CO p.m. through P. Ws. Haroon, Sarfraz and Ghulam Ghaus and committed sodomy on me again in his Hujra. Accused Huzoor Bux made me lay down on the ground with my head towards 'Kaba' and my feet towards the door of room. Accused Huzoor Bux put off his shalwar and my shalwar and committed sodomy on me by lying down over me. Accused Huzoor Bax committed full act of sodomy and was discharged. On my 'Reported as PLJ 1983 FSC 170 cry three boys P. Ws. Sarfraz, Haroon and Ghulam Ghaus who also letrn Quran with me came and saw the incident. Op 10-3-82 accused Huzoor Bux sent a chit to me through P. W, Sarfraz asking me to meet him. I see a chit Ex. 6 it is the same which was delivered to me by PW. Sarfraz. On receiving this chit I went to see accused Huzoor Bux at 4 a.m. He asked me to run away with him from Korangi. I did not agree to it but accused Huzoor Bux threatened that he will disclose about my conduct to every body and will cause disrepute to me and therefore, due to fear of disrepute I agreed. Thereafter accused sent me to Qasba Colony to house of his friend with accused Moulvi Sabir Ali present in Court. Accused Sabir Alt took me to Qasba Colony on a motor cycle. Accused Sabir had taken me to Qasba Colony at about 5.30 A.M. I remained for one night and one day in the house of that friend of accused Huzoor Bux. On Friday accused Huzoor Bux came to me at about 4. p.m., he then took me away to Hyderabad in a bus. We passed one night in Hyderabad in a hotel. Accused Huzoor Bux committed sodomy on me at Hyderabad . Then he took me to different places in the province of Sind and thereafter to different places in the provinces of Punjab . During this period he committed sodomy on me for 2/3 times. We were at Lahore when Allah Bux brother of accused Huzoor Bux met us who was in search of accused Huzoor Bux. From Lahore , Allah Bux, Huzoor Bux accused and I stayed in Madni Masjid Golimar for two days. We stayed in the Hujra of Masjid. Police raided on the Hujra of Madni Masjid and arrested accused Huzoor Bux and recovered me. Police prepared some documents at the time of my recovery and arrest of accused Huzoor Bux. Police recorded my statement." This case as set up in the afore-quoted deposition was sought to be supported by Sarfraz, Haroon and Ghulam Ghaus P.Ws. mentioned therein as eye-witnesses of one incident of sodomy, and by the evidence of recovery of Sharif from the custody of the appellant. Evidence was also led in the statements of Muhammad Hanif the father of the victim and Sarfraz P. Ws. that chit P. 6 was sent by the appellant to summon the boy prior to his last disappearance. The medical evidence about both the accused and the victim was of not much value as according to the doctor he was unable to give a positive opinion. The appellant in his statement gave details of the enmity and previous cases on account of which he asserted that he had been falsely implicated. It reads as follows :~ "I have remained Khateeb for five years in Jamia Masjid Darus Salam Korangi. After i year of my employment religious difference arose. There after an attack was made on me with churls during last Ramzan due to reciting of Slat-ea-Salam in the Mos ae, I lodged F.I R. of the incident at Korangi police station which s 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 speach in the meeting an attack was made on me. Police arrived in the meeting and the meeting was dispersed. Police left me at my house. Jama Masjid Darus Salam where I was Khateeb is the Mosque of Ahley Sunnat Bdrelvi Sect. There are three other Mosques, in the Mohalla, one is of Shia Sect, other is of Deubani Sect and third one is of Ahle-e-Hadis Sect. Last year I went to perform Umra before Hajj. The Masjid Management committee granted leave to me that 1 was being called by S. H. O. Abdul Hafiz Qadri. I was taken to police station where P. Ws. Abdur Rehman, Abaur Rasheed. Ghulaoi Hussain, Ghulatn Sarwar, Muhammad Bashir, Haji Hanif and P.W. Sharif were also present. I was detained in police lock-up, where co-accused Moulvi Sabir Ali was already detained After Maghrib prayers 1 was taken out of lock-up. Sub Inspector Akbar Ali took me in bis room and started interrogating me. He insulted me. He gave me beatings and told as to why I levelled allegation against P. Ws. Abdul Rehman and others. He further told to me as to why I did not leave the Mosque on their demand. I told to him that since Mohalla people wanted me there, therefore, he should not insist for my leaving the Mosque. Thereafter Sub-Inspector Akbar Ali started religious discussion with me. I told to him to perform his own duty and not to indulge in religious discussion. P.W. Akbar Ali Sub-Inspector told to me that he was Ahl-e-Hadis and further told to me that why 1 recite Slat-e-Slam by standing and why 1 kiss nails of my thumbs and if I have to do so 1 should keep some stool on the nail of thumbs and kiss them. On hearing this I admonished him. Thereafter he detained me in lock-up for three days. Thereafter he called me again in his room and told that he has taken some bribe from the other party however he would prepare a report U/s 109 Cr. P. C. and would release me if I pay Rs. \000/- to him as bribe. I refused to give bribe to him He then informed me that he has turned out my brother and my family from my house and has put his own lock. My family then went to house of another Moulvi Sahib who is from my native place Dera Ghazi Khan. I was thereafter again detained at police station for 10 days more. Thereafter Sub-Inspector Akbar recorded F. I. R. against me. Thereafter Sub-Inspector Ali obtained my signature on a paper. Thereafter I was sent to Civil Hospital for medical examination. I am innocent." Elaborate defence evidence was produced to prove the plea reproduced above, It included amongst others the Pesh Imam Abdul Karim of Madni Mosque from where the police allegedly recovered the victim from the custody of the appellant. He contradicted the prosecution story. The learned trial Court could not decide whether the chit Ex. P. 6 was in the handwriting of the appellant-. However it was found to be a case of enough evidence both on question of kidnapping and sodomy. The defence plea and defence evidence were rejected and the appellant and his coaccused were convicted and sentenced as noticed earlier. On appeal it was found by the Federal Shariat Court that the charge of kidnapping and/or abduction was not established. Sabir Ali's convic tion was set aside and appellant's conviction and sente ce u/s 377 P. P. C. only, were maintained. Leave to appeal was granted to re-examine the evidence "so as to see whether the conviction in this ; case is based on accepted principles of appreciation of evidence". We have gone through the record and have heard arguments addressed at the bar. The F. 1. R. was lodged by Hanif P. W the father of the boy, on 7th day of his dis-appearance. He was a grown up boy of about 15 years of age. It was not an ordinary dis appearance. Search was made for him every where. So much so that Sarfraz P. W. had also been contacted. He had before that stage allegedly seen the act of sodomy being forcibly committed by the appellant on the boy. He had also heard shrieks. He was then accompanied by Haropn and Ghulam Hussain. It is strange that for 7 days their friend was missing. They knew about the previous act of sodomy. Despite that they did not inform the complainant about sodomy nor of those witnesses having seen any such act. The bizarre explanation at the trial that the appellant had threatened them on 'the next' day not to disclose his conduct and also that they were made to say on the Quran that they would not disclose it is unacceptable. Why did not they disclose it for 24 hours before the threat, is also not explained. This one day as also seven days on the second occasion make in-ordinate delay in the disclosure of the alleged offence. They are proped up witnesses. It is evident from their statements that they were made into eye-witnesses to corroborate Sharif's story after his so-called recovery. He had explained his long absence for some weeks by foisting it on the appellant. Further these boys, admittedly his friends, made the disclosure also weeks after his dis appearance. It was not safe to rely on their statements nor the chit Ex. P. 6 around which they built an equally bizarre story. If these three witnesses are discarded then the chit Ex, P. 6 would loose any significance, because, as held by the Federal Shariat Court it was with the help of their testimony that the chit could be utilised. Realising the inherent weakness in the statements of the three eye witnesses of sodomy, the Federal Shariat Court observed that even if it is excluded from consideration the testimony of Sharif P. W., the victim boy, was enough for conviction. It was ignored that he had all the qualities of a dishonest witness. He did not disclose his so-called liaison with the appel lant for a long time prior to his dis-appearance. On his own showing he went around with the appellant to far off places in the provinces of Punjab and Sind . No where did he disclose to anybody the fact that he was being kept as a victim by the appellant. It is only after he came in the hands of the police and his relatives, who had obvious animus against the appellant, (that he carrie out with an unbelieveable cock and bull story. This fact is demonstrated from an episode recorded in the judgement of the learned trial Judge. This witness (Sharif P. W.) after recording his statement at the trial against the appellant went away with the brother of the appellant (who was then in custody). He stayed away from home for some time and one day appeared in Court with the defence counsel to support a deposition made by him in a duly sworn affidavit disowning the entire prosecution version and making a statement favourable to the appellant. The learned trial Judge instead of acting under Section 540 Cr. P. C, (Second part) and examining the boy straightaway, as it was an important development, started unnecessary argumentative clash with the law>er on the assumption that the boy might have been coerced by'he lawyer or his clients. Even if this were so he should have removed the boy to a neutral custody for some days before examining him. Instead he was again handed over to his parents to be brought again in Court. When he re-appeared he had by then changed his position for the third time, by making another volta face. On that the defence offered that the boy be handed over to any neutral agency and then examined under Section 540 Cr P. C. (second part) but the learned Judge refused itpresumably, unfortunately though, fljon account of annoyance with the lawyer. A mandatory provision of law in second part of Section 540 Cr. P. C. was contravened without any justifiable cause. The decision of this Court in Mohammad Azam v. Muhammad Iqbal and others (PLJ 1984 S. C. 192) is clear in that behalf. Coming to the effect of what is stated above, it is obvious that noncompliance with mandatory proviiion in 540 Cr. P, C. has in this case caused very serious prejudice to the accused, If Sharif would have been examined again as court witness and cross examined by both sides some more corners of his character might have been revealed. Be that as it may, the three positions changed by this witness during the same trial make himi an unreliable person, particularly when as discussed earlier the convictionjo has mainly been based on his statement. The law regarding such hkej witness was laid down in Qntba v. The Crown (PLD 1954 F. C. 197) and Adalat and another v. The Crown (PLD 1956 F. C. 171) to the following effect : "PLD 1954 F. C. 197. "The law requires that the benefit of such doubts should go to the accused persons. They cannot be resolved by mere assumptions regarding the motives by which witnesses might have been guided in making variant statements. Any indication that a witness has adopted his testimony in relation to any motive other thais a desire to disclose the truth so far as is known to him throws a doubt on the statement which must go to the benefit of the accused, unless resolution of the doubt be possible with reference to other credible evidence or established circumstances." "PLD 1956 F. C. 171 "A witness who had indulged in self-contradictions, saying in examination-in-cbief that he had seen the accused clearly but adding in cross-examination that the accused had muffled their faces and it was by their stature that he had recognised them, whose version as to the weapon used in the murder and the situa tion of the gunshot injury conflicted with the medical evidence, was a basically dishonest witness and was giving evidence, with a motive other than stating the truth. Such a witness's version in the examinatipn-in-chief was not necessarily wholly true. The doubt attaching to his evidence could not be satisfactorily resolved by the bare suggestion that he was won over." In this case the infirmity in the testimony of Sharif t. W. cannot be. overcome by reference to any other reliable evidence.Accordingly besidesL the kidnapping and abduction the charge of sodomy also fails. The appel-J lant is entitled to acquittal. This appeal is allowed and it is ordered) accordingly. The appellant shall be released forthwith unless ordered to be detained in any other matter. Before closing this judgement it needs to be observed that in view of the finding recorded in this judgement, it is not possible to hold that the defence plea in this case was totally false. he order for the prosecution of the defence witnesses is therefore set aside, (TQM) Appeal allowed.
PLJ 1985 S C 374 [Appellate Jurisdiction] PLJ 1985 S C 374 [Appellate Jurisdiction] Present : muhammad haleem, CJ ; shapiur fahman, zapfar hussain MlKZA & MlAN BURHANUDDIN KHAN, JJ KALAAppellant versus BOARD OF REVENUE and AnotherRespondents Civil Appeal No. 154 of 1979, decided on 18-3-1985, (i) Consolidation of Holdings Ordinance, 1960 (W. P. Ord. VI of I960)
S. 13 Board of RevenueRevjsional jurisdiction ofExercise ofLimitation forRevision petition filed within ninety days of order passed by Additional CommissionerHeld : Petition before Board not to be beyond timeHeld further : Revision application before Board having been directed against order passed by Commissioner, period of ninety days prescribed for making application under S. 13 (I) (b) not to be computable with reference to order passed by Consolidation Officer. [P. 378JD & F (ii) Consolidation of Holdings Ordinance, 1960 (W P. Ord. VI of I960) S. 13Board of RevenueRevisional jurisdiction ofScope of Held : There being no statutory limitations placed upon its reach and manner of exercise (except time limits ob its recourse on motion of party in case of Board of Revenue), power of superintendent and control over subordinate functionaries in structure of authomies envisaged under Ordinance to be vast &cd unbridled in iis scope and amplitude, [P. 379]<? (iii) CoBselidatiOT of Holdiegs Ordinance, I960 (W. P, Ord, V! of I960)
S. 13Board of RevenueRevisional jurisdiction ofFailure to file appsa!Effect ofIntermediary steps of filing appeals before lower authorities not taken by applicantHeld : (Limits as to cases in which revisional jurisdiction to operate having not been prescribed in S 13), order of Board of Revenue not to suffer from Sack of jurisdiction (on such ground alone). [P. 380] L (iT) ConsoHdjstiOT of Holdings Ordinance, 1960 (W. P, Ord. VI of 1963) S. »3 and Civil Procedure Code (V offcOS}S. USBoard 0 ! RevenueRevisional jurisdiction onLimitations onHeld : Extent and scope of revisional jurisdiction being regulated by statue creating it, same to be determinable according to terai-J "I n:Ievaal statute Limits as to class of cases in which revisional iun-,CicUon to operate not found in language of S. 13 of OrdinanceHeld : Such limitation not to be read into provisions of Ordinance, [P 379JJ? PLD 1970 Lab, 614 approved. PLD 1963 SC399re/. (t) Consolidation of Holdings Ordinance, 1968 (W, P. Ord, VI of I960) S. 13 (2)Commisssoner Revisional jurisdiction of Exercise ofFailure to mention relevant provisionEffect ofHeld : There being no law or rinciple of law mandatorily requiring repository of any statutory power to act on!y when particular section of statute be mentioned in application, failure of applicant to mention any provision of law or to describe application as revision application to make no material effect on exercise of jurisdictionCommissioner empowered to modify or reverse order (of Consolidation Officer) challenged in applicationHeld : c ommissioner not to be rendered incompetent to act upon application merely because of such appli cation having been made as miscellaneous one. [Pp. 377 & 3781 A, B & C (vi) Consolidation of Holdings Ordinance, i960 (W, P. Ord. VI of i960)
S. 13 (2)CommissionerRevisional jurisdiction ofExercise of Limitation for Held: There being no limitation on exercise of power on motion of parties so far as Commissioner be concerned, same not to be imported or spelled out in provisions (of Ordinance). [P. 378]£ (fii) Practice & Procedure
Provision of lawNon-mention ofEffect of-Held : Non-mention of any provision of law being mere matter of technicality, same not to affect jurisdiction of statutory authority in any way nor to result in vitiation of such proceedings-Substance of prayer contain ed in such application held further, to be looked at ia such pro ceedings. [P. 378JJ (riii) Reviffons Scope ofHeld : Power exercised by revisional court or authority being not that of continuing original proceedings, such court t examine aad determine whether thai already took place suffers from any illegality or improprietyHeld further : Such jurisdiction being creature of statute regulated by express terms in which it be couched, extent of revisions! power not So be determined by applying any general notions or concepts. [P. 379j/f (jx) Revision
Scope ofHeld : Statutory limitation of S. 115, Civil Procedure Code (V of 1908) not to be imported in construing scope of revisional power under other statutes. ]P. 3?8]C O'l. Muhammad Aslam, Advocate-on-Record for Appellant. Nemo for Respondent No, 2. Date of hearing : 18-3-1985. judgment Zaffar Hussaio Mirza, J. Leave was granted to determine two ques tions of law that arise in this case. The first question is whether the remedy of filing a revision petition available to a party under the Punjab Consolida tion of Holdings Ordinance, 1960, was dependent on his exercising right of appeals etc, or could be exercised independently of it. The second question is whether in the circumstances of the case the bar of limitation created such a jurisdictiooal defect in the proceedings before the Member, Board of Revenue, West Pakistan , as to merit interference in constitutional jurisdiction. 2. Briefly the facts are that the appellant owned and possessed agri cultural land measuring 47 kanah, 3 marlas in village Phullarwan, Tehsi! and District Sheikhupura, In the consolidation scheme the appellant was allotted most of the land originally owned by him. Some of his land was allotted to respondent No. 2 and in lieu thereof he was given about 6 kanals land in another khasra number, the net result was, that his holding was reduced from 47 kanals, 3 marlas to 39 kanals, 14 marlas. The appel lant, however, did not file any appeal against the order of the Consolida tion Officer. 3. Four yean after the confirmation of the scheme on 27-10-1965, the appellant filed a miscellaneous application before the Additional Commis sioner Consolidation, seeking to challenge the scheme, but his application was dismissed vide order dated 10-8-i966. He then preferred a revision be fore the Board of Revenue, West Pakistan, which was decided by the Member, Board of Revenue, West Pakistan vide his order dated 16-12-1968. His revision was accepted and the order of the Consolidation Officer was modified by taking out the area to the extent of shortfall given to respon dent No. 2 from his khata and allotted to the appellant. 4. Aggrieved by the aforesaid order passed in revision by the learned Member, Board of Revenue, respondent No. 2 filed a constitutional petition before the Lahore High Court, Lahore, which was accepted by the impugn ed judgment of the learned Single Judge dated 15-11-1973, and the order of the Board of Revenue was set aside, The reasons that prevailed with the learned Judge in the High Court were, firstly that the power of revision conferred on the Board of Revenue under section 13 of the Punjab Consoli dation Holdings Ordinance, 1960, was exercisable either luo motu at any described as a revision application, will not make any material effect on che exercise of jurisdiction. There is no law or any principle of law which mandatorily requires the repository of any statutory power to act oasy when a particular section of the statute is mentioned in the application for exercise of such power. In such proceedings it would, to our mind, be sufficient to look at the substance of the prayer contained in such appli cation. The non-mention of any provision of law is a mere matter of technicality and does not in any way affect the jurisdiction of a statutory authority or result in vitiation of such proceeding. Admittedly aa appli cation was submitted by the appellant for modification or reversal of the order passed by the Consolidation Officer, which wan within the power of he Commissioner to do by virtue of section 13 (2) reproduced above. It ill be further observed that even the statute in the heading of the section or in the side note does not describe the power conferred thereunder as revisiona! power. We are, therefore, unable to see the force of the reasonng that merely because the application was made as a miscellaneous »ppli» cation, the Commissioner was rendered incompetent to act upon it, 7. The second ground pertaining to the limitation also seems to us to be untenable as no question of limitation would arise in the facts of this case. The power under section 13 (I) «.b) of the Ordinance in express terms provides that an application for invoking the same can be made by an aggrieved person within ninety days of the passing of aa order in aoy pro ceedings under the Ordinance by any Revenue or Consolidation Officer, which is challenged. The order under challenge before She Board of Revenue was that of the Additional Commissioner by which he had dis missed the application of the appellant for modification of the order passed by the Consolidation Officer. It was not disputed that the revision appli cation of the appellant was filed before the Board of Revenue within ninety days of the sasd order passed by the Additional Commissioner dated 10-8-1966. The revision application before the Board of Revenue was, (herefore, not beyond time. It will farther be noticed that the power vesting in the Commissioner under section 13(2} is not split up in two categories, as has been done in the case of the Board of Revenue under sub-section (1) of section 13, whereby the power is exereisable either suo motu or on the motion of parties. The limitation of the period of ninety days on the exercise of power on motion of parties, does not find place so jfar as the Commissioner s power is concerned. The result is that there is Jno limitation on the exercise of power on motion of parties so far as the [Commissioner is concerned and such a limitation cannot be imported or 'spelled out in the provisions. Apparently, therefore, the application of the appellant before the Commissioner is not hit by the bar of limitation and as already stated, his revision application was well within time before the Board of Revenue. Thus no question of limitation as a clog on the exercise of power arises in the present case. We cannot agree with the learned Judge in the High Court that the period of ninety days prescribed for making application under section 13 (1) (b) is computable with reference to the order passed by the Consolidation Officer, when the revision application before the Board of Revenue was directed against the order passed by the commissioner. 8, This brings us to the third and the main ground of the decision which falls for determination, i.e. whether it is necessary for an aggrieved person to exhaust the remedies of appeal to lower authorities before invoking the We agree with the view taken in this decision, which is also applicable to the construction of seofion 13 of the Punjab Consolidation of Holdings Ordinance. In Muhammad Farid Jan Vs Colonisation Officer, Sukkur Barrage (PLD 1965 Supreme Court 399) , although no such question was directly raised, yet the ratio of the decision seems to be in accord with the view taken by us. In that case the matter related to the revisions! power of the Board of Revenue, under section 211 of the Sind Land Revenue Code, 1879. In that case the matter -,n dispute originated before the Assistant Revenue Officer, Sukkur Barrage and appeals were filed against the original decision before higher appellate authorities. The matter finally came before the Board of Revenue, West Pakistan , which disposed of the same after hearing the parties. The order of the Board of Revenue was challenged before the High Court in writ jurisdiction unsuccessfully and eventually the case came to this court. It was found that the lower appellate authorities lacked jurisdiction and as such the orders passed in appeals were held to be of no legal consequence. Yet this Court upheld the order passed in revision by Board of Revenue on the following line of reasoning : "By section 211 of the Act, the Board of Revenue possesses power to revise an order passed by any subordinate officer and questions of legality as well as propriety of such a decision would be open in revision before the Board. The order of the Board was passed after full hearing of both parties on the merits of the case. Even if therefore the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 of the Act, could not be successfully assailed as illegal." ^ In view of the above, we hold that the order of the Board of Revenue impugned in these proceeding did not suffer from lack of jurisdiction on the ground that interemdiary steps of filing appeals before the lower authorities were not taken b) the applicant in the revision, 9. In the view that we have taken thai the revision application filed by the appellant before the Board of Revenue was not barred by limitation, it becomes unnecessary to go into the other point noticed in the leave granting order. 10. In the result this appeal is allowed, but as the respondent has not contested the same we pass no order as to costs. (TQM) Appeal allowed
PLJ 1985 S C 380 PLJ 1985 S C 380 [Appellate Jurisdiction] Present : muhammad haleem, CJ, ; aslam riaz hussain, shafiur rahman & zaffar hussain mjrza, JJ MAWAS KHANAppellant versus Subedar MEHAR DILLRespondent Civil Appeal No. 26-P of 1975, decided on 24-3-1985. (i) N. W. F. P. Pre-emption Act (XIV of 1950)
S. 16Right of pre-emptionLoss of prior to decreeEffect of Held; Pre-emptor being required to maintain his right of pre-emption till date o! decree, an\ transaction made alter or even before institu tion of
,uii adversely affecting his right of pre-emption (o he legally recognised and given effect to. [P. 384i.4 (ii) N W F, P Pre-emption Act (XIV of 19S<J!
Ss. 29 & 17 (2) and Punjab Pre-emption Au (i of !9!3jS, 28A-- Pre-emptor Indefeasible right of Determination of- Held : Preemptor pre-empting sale to be required to ha\e indefeasible right of pre-emption while defendant pk';id;ii{. r protccn-^n fjr sale to show inde feasible right under pre-emption I'tw -Pre-emptor claiming superior right of pre-emption on ba>,is of purchase subjected to (or hkeiy to be subjected to) pre-emption siaini --Held: Claim of such pre-cmptor not to be decided unless claim against him '".- jdiudicated upon and up held or rejectedHeld further . Vendee uK < not to be allowed to set up claim on basis of transaction liable to be defeated by exercise of right of pre-emption unless such right or > him becomes indefeasible under pre-emption law. iP. 3( V 5 /»' (Hi) N. W. F. P Pre-emption Act (XIV of 1950s -
S, 29. Punjab Pre-emption ,vt (I »f i''l.")-S, 28-A and Civil Pro cedure Code (V of 1908) S. 10- I'rc --.-inption -juitsPostponement of decision f eld : Express Jjp.iriurc 1 having been made from genera! principles of S, 10 of Civil {'f..«. ,'dure Code with regard to stay of suit subsequently instituted, ,-o\iMonx of S. 29 of Act XIV of 1950 (and S. 28-A of Act I of 191?) t" he confined to pre-emption claims and pleas raised m defence :n:ainst it, ;P. 861C (iv) Constitution of Pakistan , 1973
An. 185 read with N. W. F- I'. Pre-emption Act (XIV of 1950) S. 29Pre-emptionsuitPostponement of decision ofOrder regard ingSupreme CourtInterference by View taken by High Court in "applying S. 29 of Act suffer iig from no legal infirmity-Held : Appeal before Supreme Court lo fail on such grotsnd. iP, 386JD (v) N. W. F. P, Pre-emption Act (XIV of lySOS
S. 29See Cor^ritutim «>f Pakistan , [973-Art. 185. jP. 386J& !vi} Punjab Pre-emption Act '<$ of 1913)-
S. 28ASee : N v, !- ','. Pre-emption Act ;X!V of 1950)S. 29. :Pp. 385 & 386 jj? 6 ' Mr. Khan K(ih>m'>'> htun. Advocate Supreme Court instructed by Mr. M. Ad vocate-on-Record (absent,| for Appellant. Mr. S Sj' tar Hussain. Advocate-on-Record for Respondent, Date "i" !?carr;g H-P>!984. judgment Shafinr K.ihmao, J.'The vendee defendant in a pre-ernptiec susi wa? granted k-ive to appeal 10 examine whether the High Court of Peshawa; had in its judgment dated 2?-S-19"5, taken a coirect view of Section 29 o the N. W. F. P. Pre-emption Ac? (hereinafter referred so as the Act). The appellant purchased on the 27th of January. 1970 i/3rd share o 1 M$t Taj Bibs in Khasra No. J 742 and 1743 of Village Asotta,' Tehsil Swa'hi District Mardan. On the 15th of August, 1970 he purchased the remaining 2/?rd share in the same Khasra numbers from another co-sharer Afzal a brother of A/it. Taj Bibi, Subedar Meher Dill respondent irstituted on the 23rd of January, 1971 Civil Suit (No. 38,1 of 1971) pre-empting the first saie. It appears that in resisting that suit the appellant claimed a superior right as he had, on account of the second sale, become the full owner of these two Khasra numbers. On such a disclosure having been made, the Court by an order dated 27-3-1971, stayed the suit (No. 38/1 of 197!) in terms of the requirement of Section 29 of the Act. The plaintiff thereupon instituted on 24th of February, I<J71 another suit (No. 93/1 of 1971) pre empting the second sale on the ground of his superior right of pre-emption. While this suit was pending on 27---I97S the appellant acquired interest by exchange in fhe contiguous Khasra number 1721 from one janas Khan. He resisted the claim of the plaintiff respondent in the second suit on the ground that by the first sale dated 27-1-1970 he had already become co-sharer and his rights were superior to that of the plaintiff-respondent and further that by the subsequent exchange dated 274-1971 he had become contiguous owner thereby equalling the right of the plaintiff-respondent. In the trial Court, the exchange completed after the institutir r, of the second suit was made the basis for resisting the claim of the plaintiff-respondent. The legal ground taken up for making such a ckim was that sub-section (2) of Section 17 of the Act which was introduced by N, W. F. P. Act VI of 1967 had disappeared with the repeal of the amending Act VI of 1967 by West Pakistan Ordinance XVIII of 1970. The trial Court disposed of this legal Abjection in the following words : "In view of the promulgation of N, W. F. P. Pre-emption (West Pakistan Amendment) Act, 1967, a vendee defendant, was refused the right of bringing any change in his status after the institution of a pre-emption suit against him. This Act was afterwards repealed by the West Pakistan Repealing Ordinance, 1970 i. e. West Pakis tan Ordinance No. XVI! I of 1970. But the amendment made in the N. W F. P. Pre-empt-on Act, by the N. W. F. P. Preemption (West Pakistan Amendment) Act, 1967 shall stand good, notwith standing the fact, that the amending Act was itself repealed by West Pakistan Ordinance No. XVIII of 1970. This view is taken within the meaning of section 5 of the West Pakistan General Clauses Act, 1956. This being the situation, the defendant vendee is not capable of making any change in bis status after the institution of the suit on 24-2-71, and the change of status so made on 27-4-71 is of no avail to him." he second suit of the plaintiff-respondent was decreed on payment of he market value of the property, In the first appeal filed the appellant challenged the superior right of pre-emption of the plaintiff-respondent but this time it was done on the basis of the earlier purchase made by him, the subject matter of civil suit No. 38/1 of 1971 which had been stayed. The appellate Court disposed of this ground in the following words : "On an application submitted by the respondent today, I sent forthe record of suit No. 38/1 which was instituted by the respondent in the court of the learned Civil Judge Swabi on 23-1-71, A perusal of that suit will show that Subedar Mehrdil Khan the respondent Explanation, For the purposes of this section, no pre-emptor plaintiff shall be deemed to have lost a subsisting right of preemption by reason of the fact that the vendee defendant has after the expiry of the period of limitation provided for a suit for pre emption, transferred the property in dispute to person having a right of pre-emption equal or superior to that of the plaintiff." (Added by Act XI! of 1972 N. W, F. P. ) The language of this section is pre-emptory. It requires the pre-emptor to maintain his right of pre-emption til! the date of decree. Therefore, [any transaction made after the institution of the suit, or even before the institution of the suit, which has the effect of adversely affecting his right of pre-emption must be taken note of; legally recognised and given effect to. This of necessity involves the determination of questions of titls arising during the pendency of the suit, recognizing the transaction pendents lite. One of the alternatives could have been to decide the legal effect of such transactions by consolidating the suits but then such a course would have on the one hand made the proceedings endless and on the other arrayed before the Court parties with extreme diversity of interests. In order to obviate such a situation and to keep the cause of action, the suit property, and the parties different and distinct relatable to each separate transaction, Section 29 was introduced. Its language reproduced in extenso hereunder shows that it modifies and substitutes the principle forming the basis of Section 10 C. P, C, 'Section 29 No decree be passed untijl pre-emptor's basic right upheld. (1) If in any suit for pre-emption any person bases a claim or a plea on a right of pre-emption derived from the owner ship of agricultural land or other immovable property, and the title to such land or property is liable to be defeated by the enforcement of a right of pre-emption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right or pre-emption has expired and the suits for pre-emption (if any) instituted with respect to the land or property during the period have been finally decided. (2) If the ownership of agricultural land or other immovable property is lost bv the enforcement of a nght of pre-emption, the Court shall disallow he claim or plea based upon the right of pre-emption derived therefrom." The situation faced in the present appeal is not the only one provided for in Section 29. The pre-emptor may himself be claiming a right to pre empt arising out of a recent sale the period of limitation for challenging which under the Pre-emption Law mav not have expired when the suit is brought. This provision will apply to such a right also as it will not be an indefeasible right. Similar!)', a defendant who resists a preemption claim on the basis of a similar saie must show that his right thereunder is indefeasible. The amendment in Section 17 sub-section (2) has also a bearing on the case as it provides that '(2) Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of suit {'or pre-emption shaif not affect the right of th pre-emptor plaintiff in such sint" Pre-emption Law he cannot be allowed to set up a ci»iro on its basis. To achisve this object in judicial proceedings. Section 28A of the Pre-emption Law was inserted and \va& also incorporated as Section 29 of the N.W.F P. Pre»emption Act. It is an instance of express departure from the genera! principles of Section iO C. P, C. with regard to stay of the suit subsequent ly instituted and is confined to pre-emption claims and pleas raised in defence against it. The view taken by the High Court in applying Section 29 of the Act buffers from no legal infirmity and this appeal must fail which is hereby Dismissed with costs, Appeal dismissed.
PLJ 1985 SC 386 , [Appellate Jurisdiction] PLJ 1985 SC 386 , [Appellate Jurisdiction] Present ; mohammad afzal zollah, M. S. H. quraishi & mian burhanuddin khan, JJ FAZAL HAQ and AnotherPetitioners versus MUHAMMAD LATIF and OthersRespondents Criminal Petition No. 117 of 1985, decided on 30-4-1985. (i) Criminal Procedure Code, 1898 (V of 1898)-
S. 145-Immovable propertyDispute as to-MagistratePower to make preliminary orderDispute likely to cause breach of peace existingHeld : Magistrate to pass preliminary order and thereafter to make inquiryHeld further : Inquiry to be limited to determi nation of question of possession in fact on date of preliminary order irrespective of question as to right to possession of parties or their title to property. [P. 388j,4 & B (ii) Crimiaal Procedure Code, 1898 (V of 1898) S. 145 Immovable property Dispute as to Magistrate- Preliminary order byCancellation ofNo dispute likely to cause breach of peace existing in case Held : Magistrate to cancel his order and to stay ail further proceedings. [P. 388]C (fii) Criminal Procedure Code, 1898 (V of 198) S. 145 Immovable propertyDispute as toMagistrateJuris diction to pass orderMagistrate finding no breach of peace existing in caseHeld : Magistrate to have no jurisdiction to make order regarding subject of dispute. [P, 388]£ Criminal Procedure Code, 1898 (V of 1898) 45Immovable propertyDispute relating toRights of parties Htlement ofHeld . Infringement of private right or dispossesof any of parties or exisfence of dispute relating to immovable srty per se not to be enough to attract provisions of S. 145, '. C.Held futrher : Section (145) having beea designed to meet emergent situation posing threat to peace, same not to be used for settling rights of parties or their claim to title. [P. 388]D (t) Constitution of Pakistan , 1973-
-Art. 185 read with Criminal Procedure Code, 1898 (V of 1898)S. 145Leave to appealRefusal ofCourse adopted by Magis trate found to be in conformity with lawHeld : High Court being fully justified in restoring Magistrate's order, no case for interference (by Supreme Court) made out. [P. 389] F Mr. Dilawar Mahmood, Advocate Supreme Court instructed by Mr, Mahmood A. Qureshi, Advocate-on-Record (absent) for Petitioners. Nemo for Respondents. Date of hearing : 22-4-1985. order M S. R. Qnraishi, J.The main question arising in this petition is the true interpretation of section 145, Cr. P. C. It arises in the following circumstance. 2. Land measuring 2 kanals 2 marlas and 169 sq. ft. situate in Chak No 2>3/R B., Samundri Road, Faisalabad, has been leased out by Abdur Razzaq, respondent No 3, to one Riaz Ahmad on 2511-1976, for the purpose of building a factory thereon. Riaz Ahmad died on 11 8-1977, whereafter Fazal Haq and Javed Iqba! petitioners, who are father and brother, respectively, of Riaz Ahmad set up the factory and are said to have been paying the annual lease money reguhrly until the night between the 9th and 10th October 1982 when Abdur Razzaq, the owner of the land, alongwith respondents 1 and 2, allegedly forcibly took over possession of the factory, ousting the petitioners. A case was registered on 12-iO-!9il2 with the police at the instance of the petitioners urckr sections 448/149 and P. P. C. A private comolaint was also lodged under sections 382 448/ and '48 P. P. C. ot content with this, the petitioners also moved an application on ll-1 1-1982 for procjeding under section 145 Cr P. C., in which an interim order as assed on 29-12-1982 for attaching and sealing the property. After recording evidence of the parties, the ivlagistrate came to the view that the dispute as not such a? was likely to cause a breach of the peace and that there was nothing in the evidence to justify a con clusion that a breach of the eace was likely to be caused by the dispute. He, therefore, by order dated 9-1-1984 dismissed the application under section 145 Cr. P. C. and irected the police to desea! the factory and £o hand over its possession to the party from which it had been taken. On revision Sled by the etitioners, the Additional Sessions Judge, Faisalabad, before whom the only question raised was as to which party was entitled to the restoration of ossession of the property after its release from attach ment, held that the petitioners had been in actual possession of the pro perty till the night f th October 1982 when they were forcibly evicted and thus were entitled to the restoration of the property under subsection (4) of section 145 Cr, p. . e, therefore, by bus order dated 1-3-1984, set asides the order of the Magistrate and directed that possession be restored to them. 3, This order was bought to be quashed by Abtiur Mazzaq andothers (respondents 1 to 3) through Criminal Misc. No. 66/Q of 1984. During the hearing of the petition,, the parties agreed to refer the dispute to arbitration and an order to this efkefwas made on 17-9-1934 but it was recalled at the instance of the petitioners, upon the view that a reference to arbitration was not in keeping with the intent behind section 145 Cr.P.C. The finding given by the Magistrate that aa apprehension of breach of peace did act exist, was not disputed by either party but it was urged ob behalf of the petitioners that the Magistrate was, neverthe less, bound to decide on the basis of the evidence as to which of the parties was in possession when the initial order was made under sub section (1), or entitled to be treated to be in possession if forcibly dis possessed within two months oext before the date of such order and to direct the restoration of possession to that party. Thii was repelled by the High Court and the view taken was : ;< But where the Magistrate fiods that there was no such dispute when he callsd upon the parties to submit their statements of the ease, he has no jurisdiction to further decide under section 145(4) Cr. P. C. the question as to which party was in possession, for he can only drop the proceedings under section i45(5) Cr.P.C, and to pass such consequential order in order to restore status quo ants ", Conse quently the order passed by Additional Sessions Judge was quashed aad that of the Magistrate was restored. 4, Under the scheme of section 145 Cr.P.C., a Magistrate can act only if he is satisfied that " a dispute likely to cause breach of the peace exists " aad it is on such satisfaction alone that he shaii make a preliminary order under subsection (!) and thereafter make an inquiry under subsection (4) for deciding whether any and, tf so, which of the parties was at the date of the order in possession and for this purpose, according to the first proviso to Ibis subsection, he may treat the party which had, within two months oext before the date of ibe order, been forcibly and wrongfully dispossessed as if he-had been in possession at such date, and if in she result of the inquiry be decides that one of the parties was or should be treated as being in such possession, be shall, under subsection (6), issue an order declaring such parly to be entitled to possession until evicted therefrom in due course of law and if he proceeds under the first proviso to subsection (4), may restore to possession the party forcibly aad wrongfully dispossessed. It has to be kept in mind that the inquiry has to be limited to the question as to who was in possession in fact on the date of As preliminary order irrespective of the question as to the right to possession of the parties ot to their title to the property. 5, Since the pre-condition to the applicability of section 145 Cr.P.C. is the existence of a dispute likely to cause disturbance of the peace, subsection (5) requires Jhe Magistrate, in case no such dispute estssts or has existed, to cancel his order made and stay all further proceedings. T is thus obvious that an infringement of private rights cr dispossession of any of the parties or the existence of a dispute relating to immovable property is per se not enough to attract the provision of section 145 Cr.P C. The section is designed to meet an emergent situation posing threat to peace and cannot be used for settling the fights of ?he parties or their claim to title, This makes the import ands purpose of sub section (5) clear. Where, therefore, the Magistrate find that no breach of the peace exists, he has no jurisdiction to make an ^ irder regarding the subject of the dispute. There is plenty of case law to support thss view and a mention in this connection may be made to Noor Ahmad v. Jamil Aimed (1975 P. Cr. L. J 75), Nawazish AH v The State (1975 P.Cr LJ. 510), Gehio v. RebmatuUah (1974 P.Cr.L.J. 34. 1 -), AH Hossain v. Sayedar lafemta (1969 P.Cr.L J. 822) and Arabinda Bhattacharjee v Abdur Eabaaan (1969 P.Cr.L.I. 338). This'was also the interpretation put by this Court in Manzoor Elabi 'v. Bighambar Das (P.L.D, 1964 S.C. 137), when it was observed : ' This subsection (5) clearly empowers any of the parties concern ed in the dispute and even any other person interested to appear before the Magistrate, and deny the existence of the dispute, and if the Magistrate upon enquiry is satisfied that no dispute likely to cayse a breach of the peace exists or existed concerning any land or water or the boundaries thereof, then the Magistrate has no other alternative but to cancel his earlier preliminary order made under substlion (1) of section 145 of the Criminal Pro cedure Code and to stay all further proceedings subject to such cancellation, And further that : " the provisions of section I4S read as a whole clearly indicate that there should be a continuing danger of a breach of peace till time the fina! order made. The use of the word 'exists' in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided by this section is no longer called for and should be put an end to. " 6. Learned counsel relied on an Indian case reported as R. H. Bhuttani r. Mani J. Dessi (A.I.R. 1968 S. C, 1444) but that not being a case where subsection (5) had been applied has no relevance. 7. The above discussion makes it clear that the course adopted by; the Magistrate was in conformity with the law and thus the High Court was fully justified in restoring the Magistrate's order. No case is made out for interference and as such leave to appeal is refused. (TQM) Leave refused.
PLJ 1985 SC 389 PLJ 1985 SC 389 [Appellate Jurisdiction] Present : muhammad halibm, CJ, muhammad afzal zullah, Z&FFAR HUSSAEN MlRZA & M. S. H. QURAISHI, ,IJ FEROZAppellant versus SHER and OthersRespondents Civil Appeal No. 282 of !976, decided on 8-5-1985. Co-$fetr« Right ofTransfer of portion in possession--Effect ofHeld : Co-shareri to Competently tranifer their poiseisory rights in Snd ssd vendee from them to be clothed with rights possessed by such cosharers, Held further : Such vendee to be entitled to retain posses sion till such time as actual s partition takes place between co-sharers subject to co-sharers obtaining declaration (of their title) or their seeking dispossession of vendee through any other remedy under jew. [P. 3 2]A PLD 1959 SC 9 ; AIR 1924 Lahore 293 ; AIR 1925 Lahore 518 & AIR 1940 Lahore 473 ref, Maulvi Sirajul Haq, Advocate Supreme Court instructed by Mr. M. Afzal Siddiqi, Advocate-on-Record for Appellant. Mr. Imtiaz Muhammad Khan, Advocate-on-Record for Respondent No. 1. Date of hearing : 8-5-1985. judgment M. S. H. Quraishi, J, This appeal by leave of the Court arises out of a suit instituted by appellant Feroz, a co-sharer in land bearing Khasra Nos. 73 and 74 in Knata No. 59, measuring in all 12 kanals 11 marlas, situate in village Chitti, Tehsil Haripur, District Hazara. His share was 32/50, the other co-sharers being Fazai Ahmad and Afst. Muhammad Jan to the extent of 9/50 share each The latter co-sharers sold the entire land of K.hasra No. 74 to Sher respondent by mutation ' No. 486 of 18-7-i963, Later, Faza! Ahmad sold his 9/50 share in Khasra No. 73 by mutation No. 533 of .23- 0-1964. Mst. Ivluha-nmad Ian having died was succeeded by two sons and two daughters. Gohar Rehraan, one of her soni.'exchanged his sh^re of 3/50 in the two Khasra numbers, vide mutation No. 533 dated 16-12-1964. The appellant challenged mutation Nos. 5^3 and 553 in a suit which he filed for a declaration that Fazal Ahmad and Mst. Muhammad Jan having already alienated their share in the tvvo fields under mutation No. 486, the said two mutations in so far as they purported to transfer land by Fazal Ahmad and Gohar Rebman were in excess of their due share in the joint Khata and as such were ineffective against his rights. In the alternative he also sought to preempt the sales. 2. The trial court found that mutation No. 486- having been attested in the cultivation column, Fazal Ahmad was entitled to transfer his share as owner and so Gohar Rehman, too, couid exchange his share and that, therefore, the appellant had no cause of action to challenge the mutations. The issue relating to his right to pre-empt the sales was also found against him. In the result, his suit was disrnused. The contention raised before the appellate Court that Fazal Ahmad and Mst. Muhammad Jan having already sold their share of the property, the subsequent sales were in excess of their share, was repelled for the reason that the relevant mutation No. 486 having not been produced, it was not possible ti express any opinion with regard to previous alienations, that as the Jamahanas for the year I96i-62 showed them to be in exclusive hissadari ; ossession of Khasra Mo. 74, it was possible that they had sold their possessory interest by the mutation and not t.ieir tight of ownership and that the failure to produce copy of the entry of the mutation would give rise tc an inference against the appeilant. The appeal was accordingly dismissed. The appellant's second appeal before the tiigh Court also failed precisely for the same reasons. adjustment at the time of partition. In Muhanmad Miweffe Khas v. Muhammad Yusuf Kban (P. L. D. 1959 S. C. 9) also, this Court ob served : "The vendee of a co-sharer who own an undivided Khata in common with another, i$ clothed with the same rights as the vendor has in the property no more and no less If the vendor was in exclusive prossession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whoie property. Alienation of speciSc plots transferred to the vendee would only entitle the latter to retain p^ossessian of them till such time - as an actual partition by metes and bounds takes place between the co-sharers," 6. In the light of these decisions, the concurrent view taken by the Courts below is not open to exception. Faza! Ahmad and Mst. Muhammad jan could sell their possessory right in the land and the vendee from them would be clothed with the same right as the vendors had in ths property ; <ind would be entitled to retain possession til! such time as an actual partition takes place between the co sharers subject to ths co-sharers iobtaining a declaration that the possession of the vendees is also theirs or iseeking dispossession of the vendees through any other remedy under ths law. In the result the appeal is dismissed though there shall be no order as to costs. (TQM) Appeal dismissed.
PLJ 1985 SC 392 [Appellate Jurisdiction] Present : MUHAMMAD HALEEM, CJ ; SHAFIUR RAHMAN, ZAFFA HUIIAIN PLJ 1985 SC 392 [Appellate Jurisdiction] Present : muhammad haleem, CJ ; shafiur rahman, zaffa huiiain MlRZA & MIAN BUHANURDDJN KHAN, JJ WALAYAT ere.Appellants versus MUHAMMAD SHAFI etc. Respondents Civil Appeal No, 768 of 1984, heard on 12-5-1985 (I) Displaced Persons (CompeniBtion & Rehabilitation Act), It58 (XXVIIT of 1958) -
S.25 CourtBar of jurisdiction ofTransfer order-Challenge toTrespasser Locus standi ofAppellant claiming no independent title or interest excep that of having remained in possession of land since long agoHeld : Appellant, being neither allottee nor entitled to transfer of land, transfer made in favour of somi one else not to be dispute by him, [P. 396]/J PL.T 1975 SC 185 & 1984 SCMR 403 ret. (ii) Evidence Act, 1872 (I of 1872)- S. 114, Illustration (g)Non-appearance of plaintiff as Witness- Effect ofAuthorized attorney of plaintiff, appearing aad making sfaiement in (court regarding his acquisition of title to pro perty even before institution of suit Statement e.f attorney neither impairing titie of plaintiff nor incapacitating such attorney from appearing and advancing title and iateresl of plaintiff : Non-appearance of plaintiff personally as witness not to prejudice his case. [P 39 6] B Mau/vi Siraj-ul-Haq, Advocate Supreme Court instructed by Mr. M.A. Siddiqui, Advocate on-Record for Appellants. Mr. Bashir A. in-ari, Advocate Supreme Court instructed by Ch. Akhtar AH. Advocatt-on-Record for Respondent Dates of hearing : 25 & 26,3 & 12-5-1985. judgment Shafiur Rahman, J. By this direct appeal undei Article 1 §5(2) clause (d) the defendants challenge the judgment and decree of the Lahore High Court dated 24-9-84 whereby a regular first appeal filed by the plaintiff was accepted ; the judgment and decree of the trial Court was set aside and the claim of the plaintiff for possession of the land in accordance with the site plan (Ex. P. 3) was decreed allowing the appellaiMs a period of three months to remove their superstructure and leaving the parties to their own costs throughout. Aziz-ur-Rafaman as an authorised attorney of Muhammad Shafi instituted a civil suit on 13-19-3977 claiming possession of an area measur ing 4 kanals 10 marlas out of Kfaasra No. 542/543 of village Marir Hassan within the municipal limits of Rawalpindi City. The plaintiff's case was that he had been given a transfer order of this land which was duly demarcated oa a site plan submitted to the Deputy Settlement Commis sioner and the defendants-appellants had encroached upon if and raised constructions on it and they were not entitled to any iatsrest in the same and were trespassers. At first an objection wat taken to the value of the suit and the deficiency in the Court fee as origitt'aiiy the suit was valued at Rs. 8.000/- and Court fee paid accordingly. ob such objec tion having been raised the statement of the attorney of the plaintiff was recorded who admitted that the value of the land ia the vicinity was in the neighbourhood of Rs. 30.000/- per kanal whereupoa the Court ordered the plaintiff to re-value the suit and make up the deficiency ia Court fee. An admended plaint was filed revising the value for the purposes of Court fee add jurisdiction to Rs. i.35,000/- and the deficiency in Court fee was made up. The defendants appellants contested the suit on. which the following issues were framed. "(I) Whether the suit is correctly valued for the purpose of Court fee and jurisdiction. If not what is the correct valuation ? OPP (2) Whether the soil is within time ? OPP (3) Whether the plaintiff is the owner of the properly ? OPP (4) Relief". As bo evidence was led wish regard to ifae re-vaiued suit ii wa» held that it was revalued correctly and the Court fee das ob H had been paid. cm appeal the High Court held that the plaintiff had instituted tha ?a>t itut only on the ground of his possession and subsequent dis-possessioa tvjt of< the basis of a transfer order issued by the Settlement Department and ;t w^; a case of title and was directed against trespassers and Article 144 was applicable and the suit being within twelve years and the position of the dttfendants-appsi'ants bcmg not any different from that of a trespasser the suit was within time. On the basis of the site plan filed aiongwiih the plaint and the demarcation of the property therein the High Court held that the property was identifiable and had in fact been identified. Azizur RehsaB the attorney was found competent to institute th.; suit and also 1?e!d competent to isake a statement on behalf of the plaintiff whose nonappearance was of no consequence to merits of the case. Hence the appeal ws accepted and the suit was decreed in terms indicated,Maulvi Sirajul Haq, the learned counsel for the appellants, contended before us that though Muhammad Shaft held a transfer order for 4 kanals 10 mafias of land out of K,basra No. 542/543 and had also an attested plan of the property 30 transferred to him his title to the property suffered from various kga! defects. It was contended, that oq going behind this title document one finds that Muhammad Nazir had been, allotted a brick kiSrs located on part of these two khasra numbers the major portion of which stood subsequently allotted to one Afjt. Amma Begum ana another, Besides, it appeared that Muhammad Shari plaintiff claimed interest in the brick kiln or a portion of it by a deed of association. According to the learned counsel, in respuct of industrial concerns, there could be no deed of association at all and \luhammid Shaft could not on the basis of such a deed of association, acquire any title or interest. It was further contended that Muhammad Nazir the allottee had himself instituted a suit against Muhammad Shafi and his attorney Azizur Reuman challenging tins deed of association and the transfer order and that suit was sub-ju'dice. Nazir had been implcaded in this appeal on his own request as a respondent on 16-3-85 and disputed the authenticity of the deed of association and the title and interest and the transfer order of Muhamraad Shaft. As long as that matter was not finally settled Muhammad Shafi could not be allowed to take up the matter and advance hi? till? by getting As reltef which has been granted. It was next contended that the suit of Muhammad Shafi was not on the basis of title but on the basis of his possession and subse quent dis-posses»ion and for that reason Artie's '42 should have been applied and as the appellants bad remained in possession for the last 30 years or so, he could not be grained the relief. If, was also contended that /Is regards the locus siandi of thg defendants appellants wfco claimedJnc independent title or interest except that 'of trespassers or of having ireiaaiBed ib possession of the land since long to go behind the transfer Jorder the decisions of this Court in Jaraa! db and ethers f. Mst, Pari ao " iasid jfoar others (1984 SCMR 4(13) and The Chief Settle-meat Commhsioaer, |LeSsere{PLJ 1975 SC 185} hold (he Seld, It was held that ersons whotjare aeiiher allottees aor cntit!et ? o the Transfer of ths iaad cannot dispute |a view of Section 25 of the Act the transfer made in Favour of some one fclje. Para 15 of the Schedule to the Act creates an entitlement of the claimants-allottees of unregistered industrial concerns and the instructions of the Chief Settlement Commissioner appearing on page 80 of the Manaual of Settlement Law aud Procedure (I960 Edition) provide for association with other claimants for transfer of industrial concerns and cinemas. However, we do not propose to undertake any farther examination of this matter as it is a question already in the subjudice civil suit instituted by Muhammad Nazir against Muhammad Shaft Muhammad Nazir has been allowed by us by out dated 12-5-1985 to withdraw the claim to be impleaded as a party to these proceedings and our order dated 16-3-1985 allowing him to oe injpleaded stands recalled. The dispute between Muhammad Nazir and Muhammad Shafi is left to be decided separately in the suit already pending. The non-appearasce of Muhammad Shafi personally as a witness does not prejudice his case because his authorized attorney did appear oa his be half. The attorney's statement that he had acquired a title to the property B evsn before the institution of the suit had a background and aa explanation which has been thoroughly examined by the High Court. Such a statement did not either impair the title of Muhammad Shafi or iccapacitate the attorney from appearing ami advancing tfoe title and interest of Mahammad Sfaafi. We find that none of the grounds advanced by the learned counsel for the appellant is tenable. The appeal is consequently dismissed with costs. (TQM) Appeal dismissed.
PLJ 1985 SC 396 PLJ 1985 SC 396 [Appellate Jurisdiction] Present : mohammad haleem, CJ, ; aslam riaz hussain, shapiur rahman, zaffar hussain mieza & M.S.H. quraishi, JJ. Mst, SARDARO and OthersAppellants versus Mst. NAZRAN BEGUM and Others--Respondents Civil Appeal No. 15-P of 1975, decided oq 15-5-1985. (i) Custom
Proof ofHeld : Custom not to be extended by logical process or analogy and must be established inductively and not deductively. fP. 399] A Rattigars's Digest of Customary Law (13th Edn. by Om Parkasfe, P. 57) (is) Custom Proof ofHeld ; Custom to be specifically proved and onus to Sie or, those alleging same, [P. 399JB AIR 1917 PC 181 & PLD 1956 SC 227 re/, (iii) Custom
Widow succeeding estate of deceased husbandDeath of Held : Widow succeeding partly or wholly to estate of her deceased husband under custom to do so as a representative of her husband Held further: Succession on death of such widow to be traced to her deceased husband. [P. 40Q|D (iv) Customary Law
WidowAllocation of half share toCustom regardingWidow in Afghan tribe of District Mardan not shown to be excluded from receiving life share in estate of deceased husband except for main tenanceRelevant mutation of 1911 itself mentioning entitlement of widow to half share for life or until remarriageHeld : Allocation of half share from estate of deceased to widow to be presumed to be in conformity with custom applicable to family or tribe of partiesPlea regarding half share given to widow by way of maintenance not taken before trial court, or even in memorandum of first appealHeld : Widow not to be held or interpreted to have received share as maintenance, [P, 399 & 400] Mr. A, R, Sheikh Senior Advocate Supreme Court instructed by Khawaja Mushtaq Ahmad Advocate-on-Reeord for Appellants. Mr. M. Shah Badshah, Advocate, Suprme Court instructed by Mr, S, Safdar Hussain Advocate-on-Record for Respondents 1 to 4. Dale of hearing. :23-12-1984. judgment M.S.H Quraishi, J The dispute giving rise to this appeal, by leave of the Court, is in regard to share io (706 kanals 9 marlas of land situate in village Gangodher, Tehsil Swabi, District Mardan. 2. The admitted facts are that the said land was the property of Khawaja Muhammad Khaii who had two wives, namely, (I) Mst. Feeroza from whom he had a son Niaz Muhammad Khan and a daughter Mst. Sakina, and (2) Mst. Mirmanji from whom he had three daughters, namely, Mst. Nazran, Mst. Marwari and Mst. Russian Jamal. Upon his death in 1911, half the property was mutated in favour of his only son Niaz Muhammad Khan and the re maining half in favour of his widow Mst. Mirmanji for life or until re-marriage, vide mutation No. 44 attested on 12-6-1911. Niaz Muhammad Khan who had three daughters but no male issue, died in 1930, whereupon the mutation of inheritance of the half share of the property inherited by him from his father was attested in favour of his widow Mst. Khanam Jan, vide mutation No. 14 of 18-8-1930. Mst. Mirmanji died in S933 and her half of the property was also mutated in favour of Mst. Kbanam Jan, widow of Niaz Muhammad Khan, vide mutation No. 81 dated 23-5-1933. Mst. Khanam Jan thus came to hold the entire property of Khawaja Muhammad Khaa which remained with her until her death in April 1967. As the Shariat Act had, A in the meantime, come into force, the entire property held by her, wai, by tbc mutation . The trial Court decreed the property of Khawaja Muhammad Kha with regard to the other half of the prope Muhammad Khan. The trial Court ca the half share which Niaz Muhammad d a prescriptive title over it and that iffs. In regard to the other half held by hare of Niaz Muhammad Khan in upon his daughters but as he predeceased fter an possession on the death of their mother possession, being adverse, had matured tfa 5, Two appeals were filed by the dr'co in three daughters of Niaz Muhammad Sttkiiia. The plaintiffs also filed cross-oojecti turned down the defendants' contention tat estate in Sieu of maintenance,for the reason pica eariier. It also rejected their claim to prestnptu Niaz Muhamraad Khan had inherited onlv hai: under custom and as such that half sh law heirs, that is, his widow (3/24 share), his ddugntesister (5/24), and that the plaintiffs bein ar share of his estate. In regard to the other ha that the same had devolved on Mst. Mir.nunii as -s such it would be inherited by the Muslim Uw hen , of Kh ma i Mi-h iai.ni i Khan, in the following share : A/^f. Mirmanji. widow = 6.'48 The three daughers from =21/48 mj/. Mirmanji at the rats of 7 48 Mst. Sakina, daughter = 7/4S Mia/ Muhammad Khan =14.48 the share as maintenance. Even otherwise, as observed by the Courts btlow, this plea that the half share given to Mst. Mirmanji had been by way of maintenance had not been taken before the trial Court or even in the memorradum of the first appeal. The contention, therefore, fails, 9. A widow, who succeeds partly or wholly to the estate of her deceased husband under custom, does so as a representative of her husband land on her deslh succession is to be traced to him. Since Mst. Mirmanji |had received the half share from the estate of KLfaawaja Muhammad Khan ias his widow, the property would, oq her death, revert to Khawaja Muhammad Khan as its last full owner and. as at that time the only person who could hold the property of Khawaja Muhammad Khan under custom was Mst, Khanam Jan, the widow of his son, the property was mutated in her name. The appellants themselves had admitted in their written state ment that on the death of Mst. Mirmanji, her property devolved on Mst. Khanam Jan under custom. This would not alter the fact that on the death of Mst. Khanam Jau in 1967, as regards the property held by Mst, Mirmanji, Khawaja Muhammad Khao, and not Niaz Muhammad Khan, remained the last fu!! owner from whom inheritance was to be -.raced. 10 It was lastly urged that, the suit was barred by limitation on the ground that the N.W.F.P. Muslim Persona! Law (Shariat) Application Act (VI of 1933), which was retrospective In its aopficalsoa, came into force on 6-12-1935 while the suit was filed in 1968, The issue of limitation raised in the suit was, however, not on this specific ground. la any case, leave had not been granted on this point and as such it is not necessary fo go into it. II. In the result, the appeal fails and is accordingly There shall be no order as to costs. (TQM) Appeal
PLJ 1985 SC 400 PLJ 1985 SC 400 [Appellate Jurisdiction] Present : muhammad afzal zullah, zffar huusasn mirza & mian BURHANUDDIN, JJ UMAR DlN-Appellact versus Syed MUHAMMAD ABDUL AZIZ SHARQI «c.Respondent! Civil Appeal No. 119 of 1979, decided on 5-5-1985. (5) Constitution of Pakistan , 1.973
Art. 185 read with Constitution of Pakistan, 1962Art. 98 and Displaced Persons (Compensation & Rehabilitation) Act, 1958 (XX VI11 of 195?}-8s. 10 & 20Settlement and Rehabilitation CommissionerOrder ofChallenge to Writ jurisdiction inter ference inSettlement and Rehabilitation Commissioner passing eminently just and proper ordsr in consonance with principle that a.- great number of displaced persons as be possible in given situatioa to be accommodatedAppellant prior allottee of property wberearespondent corning into picture much later -Hold! : Respondent no? t,o be allowed on equity to exclude appellant from property- further : Writ jurisdiction, being not esercisable in aid of injustice, impugned order of Settlement & Rehabilitation Commissioner to be upheld in circumstances. [P. 404JC PLJ I982SC 714 re/. (ii) Displaced Persons (Compensation & Rehabilitation) Act, 1958 (XXVIII of 1958)
S. 2 (4) & Schedule I, Parts I & IV read with Memo. No 2177 F. & M.Reh /60 dated 4 5-1960-Industrial concernResidential building situated within premises ofBar contained in Memo. dated 4-5-1960 enjoining settlement authorities from treating as house "any residential building situated wuhin premises of "industrial concern" Held : Word "premises" ordinarily meaning house or building with grounds and other subsidiary buildings attached thereto, residential building situated within industrial concern to clearly come within embargoIndustrial concern located in one of tenements of building comprising residential units, however, not to be said to be industrial concern as (a) whole. [P. 4Q4]A (Hi) DUpiaced Persons (Compensation & Rehabilitation) Act, 1958 (XXVIII of 1958)
S. 25 read with Constitution of Pakistan, 1962Art. 98Settle ment authoritiesExclusive jurisdiction ofCourtInterference by ettlement authorities vested with exclusive jurisdiction to decide question of divisibility of property
Held
: Court ordinarily not, to interfere with iscretion lawfully exercised by such authori ties. fP. 404]fi
Mr. Samad Mahmood, Advocate, Supreme
Court for Appellant.
Air. Muhammad Anwar Buttar, Senior
Advocate
Supreme
Court for
Respondents.
Respondent No. 2 :
Ex.~parte, Date of hearing :
5-5-1985.
JUDGMBNT
Zaffar Hussain
Miris, J.This appeal by special leave arises out of the judgment of a Division Bench of the Lahore High
Court, dated 18-10- 1973, dismissing the appellant's Letters Patent Appeal and upholding the judgment of the learned Single Judge of that court by which the appellant's constitutional petition had been earlier dismissed.
2, The dispute in this case relates to a property bearing No, 1197, Ward No. 8-M, outside
Bohar Gate, Multan City, consisting of
» ground floor, first floor and
& barsati.
There was a printing press installed in the ground floor of the said building, known as Victoria Printing Press, which was allotted to Muhammad Abdul Aziz Sfaarqi respondent). Umar Din
(appellant) who was in possession of the first floor and the barsati over it and was using it for residential purposes, claimed transfer of the said portion in his possession against his NCH Form.
The respondent, on the other hand fiisd a C.S, Form claiming the entire property as a commerciai unit, The Deputy Settlement Commissioner accepted the NCH Form of the appellant and transferred in his favour the portion in his possession as an independent house vide order dafed i2-'.-1959. li seems at this stage no final order was passed on the C.S. Form of the respondent. On 8-3-1961, the Additional Settlement Commissioner, however, accepted the appeal of the respondent and in his order observed :
"The first floor forms integral part of the building iu which tht press in question has been installed. This conclusion was reached by toe after inspecting the premises".
The operative part of the order reads as follows :
"That the result is that entire building including the portion in occupation of Omar
Din and the machinery of the press stand transferred to SyedMuhammad Abdul Az«z Sharqi on usual terms".The aforasaid order proceeded on the basis of th« statutory definition of a 'house' given in section 2(4) of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958, which stipulates that a bouse "does not include any residential building situated within the premises of an industrial concern", The appellant's revision petition challenging the aforesaid order was dismissed by the Settlement Commissioner and therefore, he approached the Chief Settlement and
Rehabilitation Comsiissioner by means of a second revision which was also disposed of by the Settlement and Rehabilitation Commissioner, Lahore Division, exercising the powers of Chief- Settlement and Rehabihtauco Commissioner, on 3-1-19&2, Learned Settlement and Rehabilitation Commissioner, who passed this order, recorded a finding thai she printing press was an ok! one and had besa installed in a room in the ground floor, whereas the upper portioa was being used as a residential place by the appellant who was also its allottee since 1948. He disagreed with the view takes by the teamed
Additional Sett!>;ra<!nt Coramissioaer treating the upper portion as an essential and integral pare of the factory premises for the reasons which may well be stated sn. his own words :-
"I have exartnned the pSaa and ! find thai Ibis house, situated oa
had needed was the factory portion of the buil.ding. The ground floor is the place where the press was running and he should be content with this alone", 3. Being aggrieved by the aforj said order, the respondent filed a constitutional petition which was..accepted by a learned Single Judge, of t!,» erstwhile High Court of West Pakistan, Lahore, declaring the order dated 3-1-1962 to have been passed without lawful authority and of no Jegai effect. This judgment was upheld by the Letters Patent Bench of the Lahore High Cnirf, Lahore and the appeal of the appellant wss disaiissed by the impugned judgment ja this appeal. B he view already taken by this Court in the said case and may poiat out that the said instructions are its no way repugnant to the provisions of section 2 (4) of the Act, The bar contained therein eajoins the settlement authorities from treating as a house "any residential building situated within the premises of an industrial concern". The important word that seem to have escaped the notice of the learned Judges of she High Court is the word "premises'" which ordinarily .means a bo»se or building with grounds and other subsidiary buildings attached thereto. Viewed in this context of the grammatical roeaniag a residential baildiag situated within an industrial concern, would clearly come within the embargo. But an industrial concern located in oae of she tenements of the building compris ing residential units, cannot be said to be an industrial concern as a whole tn which there are residential buildings situated. Thus in the facts of this case the residential portion of the first and the second floor could hardly bt held to be situated within the premises of an industrial concern. Since there was no dispute before us that the building was divisible and the upper portion has been used as a residential unit, we Sod no legal infirmity in the order of the Settlement and Rehabilitation Commissioner dated 3-1-1962. The question whether a property was divisible or not lay within the exclusive jurisdiction of the settlement authorities and the court will not ordinarily interfere with the discretion lawfully exercised by such authorities. 6. There is one more aspect of this case which justified the upholding of the impugned order of the Settlement and Rehabilitation Commissioner. As pointed out by this Court in Begum Sbams-un-Nisa vs. Said Akbar Abbasi and another (PLJ 1982 SC 714), the writ jurisdiction should no e exercised in aid of injustice. After examining the order we are of the view that the same was eminently just and proper order, in onsonance with the principle that the Settlement Laws were designed to accom modate as great number of displaced persons as was possible, in a given situation. The appellant was prior allottee whereas the respondent came into the picture much later and could not, therefore, in equity be allowed to exclude the appellant from the property, which was not demonstrated to have been used for the purposes of the industrial concern. 7. For all these reasons we allow the appeal and set aside the order passed by the High Court. In the circumstances of the case there ill be no order as to costs. (TQM) Appeal allowed.
PLJ 1985 SC 404 [Appellate Jurisdiction] PLJ 1985 SC 404 [Appellate Jurisdiction] Present': muhammad afzal zullah, M. S. H. quraishi & mian burhanuddin khan, JJ Syed AMJAD ALI SHAHAppellant versus IQBAL AHMAD FAROOQI and OthersRespondents Civil Appeal No. 31 of 1984, decided on 15-5-1985. (i) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)
S. 13 (3) (a) Eviction Landlord-Personal requirement of Ground ofShopUse of part of house as-Effect ofShop in dispute transferred to Saadiord on his CH Form subiaitt«d for house PTD issued, however, mentioning both house and shop as one pro perty transferred to him -Held : Character of property notwithstand ing its failing In commercial area to remain that of residential bouseHeld further ; Landlord to be justified ia seeking eviction of tenant on ground of his bona fide requiring unit in question for residential use as haithak of his main house. [P. 41214 & B 1980 SCMR 590 rel. PLJ 1973 SC 14 ; 1973 SCMR 180 ; PLJ 1981 SC 841 ; PLJ 1974 Kar, 339 ; PLJ 3982 K.ar. 451 ; PLD 1983 Kar. 414 ; PLD ; 1961 Lah. 233 ; [P D i964 Lab. 292; PLD 1965 Lah. 11 & 385 ; PLD 1966 Lah. 406 ; PLD 1970 Lab. 45^ & 391 ; PLD 1975 Lah 254 ; PLJ .1977 Lah. 266 ; PLJ 1977 Lah. 564; PLJ 1978 Lah. 246; PLJ 1979 Lah 296; PLD 1979 Lah. 673 ; PLJ 1982 Lah. 1 ; PLJ 1983 Lah 2S8 ; PLJ 1983 Lah. 490 ; PLJ 1983 Lah. 568 ; PLJ 1984 Lab. 243 ; PLD 1963] WP Qta. 25 ; PLD 1969 Qta. 21; PLJ 1975 Lah 324 ; PLJ 1979 Lab. 321 ; NLR 1979 Civil 551 ; NLR 1981 UC 400 ; PLJ 1981 Lah. 263 i 1983 SCMR 180 ; PLD 1965 SC 434 ; PLJ 1976 SC 522 ; PLJ 1978 SC 168 ; PLD 1979 SC 843 & PLJ 1981 SC 928 ref. (ii) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)
S. 13EvictionPersonal requirement Ground ofProperty- Original character ofTenantUse for ifferent purposeEffect of Held : Character of building remaining same, notwithstanding fact of its being put to ifferent use by tenant with or without landlords consent, landlord not to be barred from regaining possession of building or requirement of his own use in accordance with original character of building. [P. 4l4]j? (ill) Urban Rent Restriction Ordiisnaee, 1959 (W. P. Ord. VI of 1959)
Ss. 2(1) & 31 Building Definition of Held : DeSnition of "building" itself visualising whole of "building" or part of "building" let for any purpose, residential building or part thereof to be competently let for non-residential purposeCharacter of such building, however, to change aftsr grant of permission by Controller for converting residential building into non-residential one. [P. 414]£>&F (i?) Legislature
Advice toMass conversion of parts of residential buildings into shops taking place in bazars Held : Legislature to be advised to make amendments in Ss. 11, 2 & 13 of Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959) viz-a-viz power of Rent Controller regarding such units. [P. 414]C Cml Appeal No. 31 of 1984 Mr. Habibul Wahab Al-Khairi, Advocate Supreme Court instructed by Mr. Imtiaz Muhamtisd Khan, Advocate-on-Record for Appellant. Mr, Bashir Ahmad Ansari t Advocate Supreme Court, instructed by Ch. Akhtar Ali, Advocate-on-Record for Respondents 1 & 2. Respondents 3 & 4 : Ex-parte. Civi! Appeal No. 35 of 1984 Ch, Khjiilur Rahman, Senior Advocate Supreme Court instructed by Mr, M, Kowkab Iqbal, Advocate-on-Record (absent) for Appcliant, Mr. Riaz Ahmad Pirzada, Advocate Supreme Court, instructed by Mr. A, Siddiqui, Advocate-on-Record for Respondent No, 3, Respondents 1 & 2 : Ex-parte. Date of hearing : 22-4-1985. judgment Mohammad Afsa! Zuliab, J.Thess two appeals (C. A. No. 31 of 1934 and C.A, No. 35 of 1984) raise common uestions of law; they are, therefore, being disposed of together. Civil Appeal No. 3i of 1984 is directed against judgement of the Lahore High Court dated 9-7-1983 ; whereby a Constitutional petition filed by the appellant (tenant? calling in question th-;- order of eviction from an urban property en ground of psrsooa! requirement of the respondents ('i«nd!ofiJ8), was dismissed, The question involved in this case is whether £he respondents (landlords) ceald have sought eviction of the aopeifar't from a portion on tbe ground floor of their residential house situate in a busy street of Rawalpindi city wbich is fast growing into a completely commercial Bazar; on the ground: that they require the same for tiieir residential use, (notwithstanding the fact that it was leased out to the appeUaai for commercial/business use aad he in fact used it for that purpose, In Civil Appeal No. 35 of 1984,, judgement dated 2<itk of January, 1984, of ths Lahore High Court has been brought under challenge; wher-by a Constitutional pecition filed by ths appellant (tenant) calling in question his eviction from a shop on the ground of requirement of respondent No. 3 (landlord). The question involved in this appeal is similar to the one noted above and mentioned ia the leave granting order dated 30th January 1984; namsly, whether a building 1st as a -shop could be ordered to be handed over to ths landlord under Section 13 of the Urban Rent RestricdoD Ordinance (No. VI) of 1959, on the ground that the landlord requires the same for residential purposes. In this case a somewhat distinguished factual aspect is also involved; namely, that originally when constructed this unit was a part of a residential house. The said house is situate in a strest which now stands completely converted into a busy commercial Bazar. And further that the said house and the shop stand transferred to the respondent landlord as a displaced person under the Rehabilitation/ Settlement Laws through a P. T. D la this behaif a subsidiary question was argasd at ths bar that when such a property is transferred to any person, its character, whether residential house or shop notwithstanding any earlier positions, gets re-determined by the orders of transfei disposing it off as a shop or a house, The Srst question whether a residential bouse or a part ;hereof let out at ussd for business purposes cars, be got vacated under Svctioo 13 of the Ordinance far personal use of i'ie laad!ojd as a fesid<r;mai nnK.,pr;ma fade, stands resolved by a j't'-igcpient of tbsi Court repotted :n Maja Qurijsti JOsaa v Begissa M- M. iWif a»d asathej (1980 S.C.M.R, 590). Besides the subsjd-ary c.i;ii.c3'..-r^ aluo have bsae esait with in two other Muhammad Asif v. Mst, Ehurshid Begum (PLJ 1981 Lahore 265) ; Nei Muhammad v. Muhammad Shafi (1983 SCMR 180) ; Pramatfea Nath Chowdhury v. Kamir Mondal (PLD 1965 S.C. 434); Noor Muhammad Khan v. Muhammad All Khan (PLJ 1973 S.C. 14) Rahman Cotton Factory v. Nicbimen Co Ltd. (PLJ 1976 S.C, 522); Abdul Bari v Khadim Hussaio (PLJ 1978 S C. 168) ; Mrs. Gool v Mrs. Nasima A. Rahman (PLD 1979 S.C. 843) ; Muhammad Saleem v. Begum Musarrat Bashirnl Hassan (PLJ 1981 S.C. 928) ; and Mr. Habibu) Wahab Al-Khairi, learned counsel for the appellant in Civil Appeal No. 3i of 1984, has contended that the judgement of this Court in Kaja Qurban Kban's (1980 S.C.M.R. 590) case dealt with a situa tion only where a part of a residential house having been let out for residential purposes is converted by the tenant to a non-residential use. It was in that connection that the judgement therein was rendered that the landlord couid seek eviction of such a tenant notwithstanding the charged com mercial use, for his requirement for residential purpose. And it does not iay down any general law that a landlord who lets out a part of his residential house as a commercial unit can also seek eviction on ground of his personal requirement of the same unit for residential use. In the alternative he argued that if the second proposition is also held to have been laid down in the case of Raja Qurban Kfeftn, then the said judgement needs clarification so as to exclude the second category of cases from its scope. In order to justify such a submission he argued that extended to its logical ends, an owner of property of a residential unit would not be able to use the same or part thereof for commercial purrposes ; as he would become liable to punishment under Section 19 read with 11 of the Ordinance. In that connection, he referred to the definition of word "building" as also the expression "any person" used in Section 11 ; and urged, that unless and until a building is let out to a tenant it would not fall within the definition of a ''building", therefore the expression "any person" in Section 11 applies with reference to the
PLJ 1985 SC 423 PLJ 1985 SC 423 [Appellate jurisdiction] Present: muhammad haleem, CJ ; muhammad afzal zullah, shafiur rahman & S, A. nusrat, JJ RAHIM BAKHSH (deceased) through Legal Representatives -Appellants versus Mst. PATHANI (deceased) through Legal RepresentativesRespondents Civil Appeal No. 253 of 1978, decided on 1-6-1985. (i) Supreme Court Rules, 1980
.O. XIII, Rr 1 & 6 and O. XXXIII, Rr. 3 & 6 read with Limita tion Act, 1908 (IX of 1908)Ss . 5 & 12 Leave o appealPetition for Delay in filing of Condonation ofAssertion that no date of delivery of certified copies - icated by office not supported by any onclusive material or evidence Held : Supreme Court to have ample power o condone delay whan at such late stage holding of en quiry suo motu on factual controversy not to be dvisable. [Pp. 424 & 425]^ (ii) Supreme Conrt Rules, 1980 -O. XIII. Rr. 1 & 6 and O XXXIII, Rr. 3 & 6 read with Limita tion Act. 1908 (IX of 1908)-Ss. 5 & 12-Petition converted into appealDelay in filing ofExplanation of Appellants admittedly in possession of copies on day period of limitation expiring in case Each day after expiry of period of limitation, however, not satisfactorily explained Held : Appeal to be liable to be dismissed as time barred. [P. 425] B (iii) Limitation Act, 1908 (IX of 1908)
Ss 5 & 12See : Supreme Court Rules, 1980O. XIII, Rr. 1 & 6 and O. XXXIII, Rr. 3 & 6. [Pp. 424 & 425]A B Maulvi Sirajul Haq, Advocate Supreme Court instructed by Mr. M. Afzal Siddiqui, Advocate-on-Record for Appellants Mr. Shamim Abbas Bokhari, Advocate Supreme Court and Ch. Akhtar All, Advocate-on-Record for Respondents 1, 2, 4 & 6 to 14. Respondents 3, 5, 15 to 17 : Ex-parte. Pate of hearing : 1-6-1985. order Muhammad Afzal Zuliah, J.This appeal through leave of the Court is directed against judgement dated 2:-4-1978 of the Lahore High Court; whereby appellants' Regular Second Civil Appeal arising out of a land suit regarding occupancy tenancy was dismissed. Subject to the determination of question of limitation, leave to appeal was granted to examine the question whether the respondent side had abandoned their occupancy tenancy before the relevant date in 1952. There is finding against the appellant that the tenancy was not abandoned. The case is prima facie covered by two judge ments of this Court in Muhammad Ashraf v Allah Ditta (1970 S C.M.R. 118) and Baz v Yar Muhammad (981 S.C.M.R. 369). Another case Mirza v Muhammad Zaman Khan [PLD 1957 (W.P.) Lahore 242] has also been referred at the bar. In view of the said decisions of this Court, there is not much force in this appeal on merits. However, it is not necessary to examine that aspect as an objection regarding limitation having been raised and pressed by the learned counsel for the respondent, this appeal must fiail on that point. The impugned judgement was announced by the High Court on 15-4-1978. Application for copies was made on 4-5-1978. The copies were prepared and were ready for delivery on 13-5-1978. But according to the averments made in the application for condonation ot delay no date having been indicated for date of delivery, the same were obtained later on 21-5-1978. The petition for leave to appeal was filed on 11-7-1978 while the period of limitation had admittedly expired on 5-7-1978. On the day that the period of limitation expire- 4 the copies were with the appellants. The petition for leave to appeal could have been filed within time. However, more time was consumed and thus according to Office the petition became time barred. Learned counsel for the appellant has, however, relying on West Pakistan Industrial Corporation v. Aziz Qureshi (197j S.C.M.R. 555) contended that notwithstanding the prayer in the application for condona tion of delay, the time between the preparation and the delivery of the copy be excluded as a matter of right under Section 12 of the Limitation Act and not under Section 5 thereof on account of condonation. Learned counsel for the respondents has not only distinguished but also tried to get support for his poini of view from the authority cited by the learned counsel for the appellant. He also cited Abdullah Khan v. Khali! Ahmad (1972 S. C. M. R 332) ; Fateh Muhammad v Qadir Bakhsh (1975 S. C. M. R. 157) and Manzoor v. Sajawal (i9s3 S. C. M. R. 465). It has been argued from the respondents side that in absence of elaborate enquiry as to whether the statement that no date was indicated for delivery of the copy, this Court has been taking a liberal view: of only condoning the delay when the two dates of preparation and delivery are different and not of excluding the period. There is considerable force in the argument of the learned counsel.{for the respondent. The appellant's assertion hat no date of delivery was Smdicated is not supported by any conclusive material or evidence.'However, the Court has ample power to condone delay when at this late ofHeld : Actual use to which land (was) being put on 15th of August. 1947to determine nature of its disposaland law applicable to it. [P. 429]A 1969 SCMR 114 & PLJ 1974 SC 180 ref. (iii) Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) -Ss. 18 & 14 See : Constitution of Pakistan, 1973 Art. 185. [Pp. 429 & 430JB & C C. A. No 44/83 Kh. Muhammad Farooq, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocote-on-Record for Appellants. Malik Maqbool Elahi, Advocate Supreme Court, instructed by Mr. Imtiaz Muhammad Khan, Advocate-on-Record for Respondents. C. A. No. 45/83 Mr. Shahzad Jehangir, Advocate Supreme Court instructed by Sh. Salahuddin, Advocate-on-Record (absent) for Appellant. Kh M. Farooq, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate-o-Record for Respondents 2 & 3. Date of hearing : 26-3-1985. judgment Shafior Rahman, J.This judgment disposes of Civil Appeal No, 44/83 and Civil Appeal No. 45/83. Leave to appeal was granted in both to examine the judgment of the Appeal Bench of the Lahore High Court dated 9-5-1982 to determine whether it was not a case more appropriate for remand to the notified authority for recording a finding of fact afresh instead of the High Court itself substituting its own finding. The subject matter of the dispute is land measuring 22 kanals \ marla comprised in Khasra No. 542 measuring 11 kanals 4 marlas and Khasra No. 543 measuring 10 kanals 17 marlas within the limits of Rawalpindi Municipal Committee in the area known as Village Munir Hassan. It was shown in the revenue records of 19+1-42 and 1946-47 as the ownership of Han Singh and Partap Singh and the whole area was recorded as Ghair Mumkin Bhatta or brick kiln. The Deputy Rehabilitation Commissioner, Rawalpindi, by an order dated 3-9-1951 allotted it as a brickkiln to respondent No. 1. On an application made on 2-3-1960, the Additional Settlement Commissioner declared respondent No. 1 Nazir to be entitled under para. !5 (3) of Schedule to the Displaced Persons (Compensation & Rehabilitation) Act to the transfer of this unregistered industrial concern. In the meantime, it appears that a major portion of this area (about 16 kanals) was confirmed on 15-5-61 and nearabout to Mst. Amina Begum and Syed i-fa<ham Shah, the two claimants, having verified claim of agricultural land in rural area. For getting the title deed, the allottee Nazir respon dent No. 1 was required to file blue print of the area and the plans etc. and during the course of the inquiry he came to know of the allotment of the same area having been made in the name of Amina Begum Hasham Shah, and the predecessor-in-interest of the appellants He thereupon appealed to the Settlement Commissioner Land challenging their allotment. The Settle ment Commissioner held that the appeal was time barred and on merits the following operative order was passed"On merits, it is true that a brick kiln of an area of 22 kanals was temporarily allotted to the appellant by the Deputy Rehabilitation Commissioner on 27-8-1961 The land might have been described in the revenue papers as brick kiln, but the correspondence on the file of the lower cour r . shows that the appellant had to start a brick klin on it. This was objected to by Mr. M. H. Jaffry in his capacity of a president of the Military Accounts Lodge The Rehabilitation authorities referred the matter to the Municipal Health Officer and after lengthy correspondence, it was decided by the Rehabilitation Deptt : that the appellant could start the brick klin at a distance of 500 feet from the place where he wanted to start it. Th'S clearly shows that there was no brick kiln anywhere on the land z': the time of the temporary allottment and the appellant had to start one himself. As remarked earlier the brick kiln was transferred to the appellant in the year 1962 Unfortunately the area of the brick kiln not transferred was not detaibed in the PfO nor demar cated In the meantime !6 kanals of this land had been allotted to respondents by the Additional Settlement Commissioner (Lands) which was obviously culturable land. In these circumstances, I cannot hold that the entire area of 22 kanals has been transferred to the appellant. The circumstances show on the other hand -that only the area under brick kiln which should be 22 kanals minus 16 kanals stands transferred to him. There is, therefore, no force in ths appeal, which is dismissed". The respondent Nazir thereupon filed a constitutional petition challenging such a disposal of the lar,d by the Settlement authorities acting under Displaced Persons (Land Settlement) Act (hereinafter referred to as the Act). The learned Judge in Chamber, however, dismissed the constitutional petition on the ground that the transfer order held by the respondent did not mention th area transferred to him ; that the land allotted to the appellant was held to be such as could be brought under cultivation and this was a finding of fact which could not be interfered with in constitu tional jurisdiction. As regards ths jurisdiction of the Settlement authorities acting under the Act, the learned Judge held that the respondent had him self invoked it by filing an appeal before the Settlement Commissioner (Land) and he could not be heard objecting to his jurisdiction in the matter. The constitutional petition was dismissed. An intra-court appeal was filed by the respondents which succeeded mainly for the reason that the Settlement authorities had misapplied the law to the admitted facts of the case and that the Settlement authorities acting under the Act had no jurisdiction in the matter. The appeal was accepted. Thejtransfer in favour of the respondent was kept intact and the allotments made in favour of the predecessor-in-interest of the appellants was found to be without jurisdiction and without lawful authority. Khawaja Muhammad Farooq, the learned counsel for the appellants contended that the question whether the land allotted to the appellants was such as could be treated as land within the meaning of the Act was & question of fact which has been determined by the Settlement Commissioner (Land) and if there was any doubt about its correctness, the matter should have been got resolved by remanding the case to the Settlement authorities instead of the High Court itself deciding it. It was contended that in any case the order of the Settlement Commissioner was a just and proper order and should not have been interfered with in the constitutional jurisdiction. The other appeal has been filed by the Settlement Commissioner, The same grounds have been taken up for challenging the order of the High Court. None of the appellants is in a position to challenge the fact that, as observed by the High Court in the impugned judgment, the property in dis pute in its entirety was shown to be Ghair Mumkin Bhatta in the Jamabandies for the years 1941-42, 1946-47, 1952-53. The dispute between the parties centres round as to what happened to this property after 1951, that is, whether it was being actively used as a brick kiln or was lying as Ghair Mumkin land which could be brought under cultivation or had been built upon by various persons and it had to be disposed of as building sites. The Settlement Commissioner in the order which was challenged before the High Court did not at all notice as to what was the use to which the land was put at the time of Partition. It has been held by this Court in the light of the law applicable that it is the use to which property is put at the time or Partition which determines the nature of the property and also the manner of its disposl. Sub-section (3) of Section 2 of the Act defines land as hereunder :"Land" means evacuee property consisting of land held for agri cultural purposes or for purposes subservient to agriculture or for pasture including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuee insuch land, but does not include : (a) Property as defined in sub-clause (b) of clause (2) of Sec tion 2 of the Registration of Claims (Displaced Persons) Act, 1956 (111 of 1956) or in sub-clause (d) thereafter : or (b) Such evacuee land as may be declared by the Chief Settlement Commissioner as a building site." The Rehabilitation Scheme defines in clause (i) 'land' in the following words "(0 'Land means all evacuee land held for agricultural purposes or for purposes subservient to agriculture or for pasture, including unsurveyed land, trees or buildings and other structures standing on it and which the Rehabilitation Commissioner, West Pakistan, has been authorized to pool and allot under section 6 (I) of the Pakistan Rehabilitation Act, 1956 and Section 7 (1) of the Baluchistan Rehabilitation Regulation". Para 29 of the Rehabilitation Scheme makes the following pro visions : "29, Right to be given in accordance with eatries in Jamabandiea Right under the Rehabilitation Settlement Scheme should be givenIn the circumstances, we find that the impugned judgment suffers from mo legal infirmity and the two appeals are dismissed leaving the parties to c jtheir own costs in the circumstances of the case. (TQM) Appeals dismissed
PLJ 1985 SC 430 [Appellate Jurisdiction] PLJ 1985 SC 430 [Appellate Jurisdiction] Present : muhammad haleem, CJ ; muhammad afzal zullah, nasim hasan shah & shafiur rahman, JJ GOVERNMENT OF PAKISTAN through Secretary, Establishment DivisionAppellant versus BASHIR AHMAD KHAN-Respondent Civil Appeal No. 188 of 198J, decided on 27-5-1985. (i) Service Tribunals Act, 1973 (LXX of 1973)
S. 4 read with Civil Servants Act, 1973 (LXX I of J973)-S. 22 & Government Servants (Efficiency & Discipline) Rules, !973 R. 10 Service Tribunal -Appeal toCompetent authorityReiteration of earlier decision Effect ofQjestion raised already determined by competent authority in 1975Held: Such decision unless set aside, challenge to 1978 reiteration of same ear;ier decision by authority to be of no avail. [P. 436J/4 (i!) Service Tribunals Act, 1973 (LXX of 1973)
S, 4Service Tribunal Appeal toRepresentation -Decision on Communication ofInterior Division sending letter on 29-8-1975' to respondent's department with view to inform him of decision- Respondent's review application also forwarded by same Depart ment Held : Communication showing rejection having already been received in office of respondent's department presumption about his knowledge to be safely raised under general lawHeld further : Period of limitation in pecui/ar circumstances of case to start in 29-8-1975 and/or on expiry of 90 days after fiimg of his representa tionAppeal in case preferred on 14-1-1979Held : Appeal to be clearly time-barredTribunal, however, to have power to condone delay in circumstances of case. [P f36]fi & C (HI) Service Tribunals Act, 1973 (LXX of 1973) -- S.^4 - Service TribunalAppeal toLimitationBar of Respon dent's review petition against his second compulsory retirement allowed on !3-o-l978 Another representation for promotion, however, rejected on 23-11-19/8 on basis of his earlier representation having already been rejected on 29-8-1975--Held : Joint appeal to Service Tribunal filed on 14-1-1979 to be clearly time-barred. [Pp. 436 & 437]0 (iv) Service Tribunals Act, 1973 (LXX of 1973) S. 4TribunalAppeal toLimitationBar ofRepetition of re presentation Effect ofPeriod spentExclusion of Plea of Final order passed on 30-6-1975 not challenged within 30 days beforeService TribunalRepresentation however, repeated before authority deciding review petitionHeld : Period spent in making subsequent representation not to be excluded as of right in counting period of limitation. [P. 437]E (v) Service Tribunals Act, 1973 (LXX of 1973)
S. 4Service TribunalAppeal toLimitationBar ofReviewapplication filed against second compulsonly retirement decided on 13-6-1978No appeal against such order filed before Tribunal within 30 daysRespondent, on other hand, making another representation Held: Period consumed during processing of subsequent representa tion not to be excluded as of rightHeld further : Thtre being no condonation on any good ground by tribunal appeal filed on 14-1-1979 to be clearly time-barred. [Pp. 437 & 438]F (vi) Service Tribunals Act, 1973 (LXX of .973)
S. 4Service TribunalAppeal toRepresentationFailure to receive reply ReminderEffect of Held : Date of sending of reminder and time spent in waiting for response thereto not to be excluded as of right from period of limitation for filing appeal before Servant Tribunal No final reply received to representation within six monthsHeld : Mere submission of reminder being of not much help, civil servant io be required to himself remain vigilant with regard to disposal of his representation. [P. 439JG (vii) Service Tribunals Act, 1973 (LXX of 1973)
S. 4 read with Civil Servants Act, 1973 (LXX1 of 1973)S. 22 Service TribunalAppeal to Subsequent representation Period consumed in Exclusion ofPlea ofRespondent's representation for promotion to Grade 20 finally rejected on 29-8-1975Appeal to Tribunal, however, filed on 14-1-1979Held Respondent being not entitled to exclude period consumed in subsequent representation, appeal before Tribunal to be time-barred. [P. 440]# (viii) Civil Servants Act, 19,73 (LXXI of 1973) S. 22See : Service Tribunals Act, 19/3 (LXX of 1973)-S 4. [Pp. 436 & 440]^ & H Mr. Munir A. Shaikh, Deputy Attorney General with Ch. Akhtar All, Advocate-on-Rec jrd for Appellant. ..., . j Respondent in person. Date of hearing :27-5-1985. judgment Muhammad Afzal Zullah, J.This service appeal through leave of this Court is directed against the judgment dated 17-6-1980 of the Central Service Tribunal ; whereby an appeal filed by Bashir Ahmad Khan res pondent raising the so-called question of this seniority in Grade-20 in Police Group with effect from 1-5-1974, was allowed with consequential benefits- On a petition filed by the Government of Pakistan through Secretary, Establishment Division, bringing under challenge the judgment of the Service Tribunal leave to appeal was granted to examine, inter alia, the following contentions : "that the respondent representation for promotion to Grade 20 had been finally rejected on 29th August, 1975, whilst the appeal filed by him was dated 14th January, 1979. Therefore, learned counsel submission was that the appeal was grossly time barred and that the Tribunal had erred in law in holding that the repeated attempts of the respondent to reagitate a claim which had been finally dismissed on 29th August, 1975 could extend limitaton. Learned counsel also submitted that the Tribunal had misread the Proviso (a) to sub-section (1) of Section 4 of the Service TribunalsAct, 1973. These submissions require examination.' In view of the consideration of question of limitation only during the hearing of the appeal by this Court, it would suffice to re-state only the brief facts noticed at the leave granting stage. They are : The respondent was a Grade 19 officer of the Police grou,'and was appointed, as Chairman of the Sind Road Transport Corporation, Karachi. Although the Chairman's post was a Grade 20 post, the respondent had not been given this grade. However, in September, 1974, the Government issued a notification tranferring :Iie respondent to Baluchisian as Inspector Genera! of Police and gave him Grade 20. The condition of this appointment was that he would take charge of his post as Inspector General of Police, Baluchistan, immediately, but instead of complying with this order, he carried on correspondence in which he demanded allegedly that he should be given Grade 21. The respondent's explanation about his inability to take his new appointment immediately was that the Sind Government was allegedly not relieving him from the post of Chairman, Sind Road Transport Corporation. But that as it may, on the allegation that the respondent had wilfully refused to comply with his transfer order, he after due notice was compulsorily retired on 20th September, 1974, He relinquished charge on the 24th September, 1974 He then applied to the President for a review of his case and it is sufficient to state that he was re-instated in Grade 19 on 3rd June, 1975. After his re-mstatement, he again applied for promotion to Grade 20, but his representation was rejected and as he was working in the FfA, by its letter dated 29th August, 1975 to the FIA the Interior Division purport!} 1 informed the respondent through the FIA that his representation for promotion to Grade 20 had been rejected. In 1976, the respondent was Inspector General of Prisons (Sind) whan he was again compulsorily retired for the second time on 30th October, 1976. He filed a review application and was again re instated on 13th June, 1978, in Grade 19. Therefore, once again, he filed representations that he was entitled to appointment in Grade 20 but as according to him his representations were finally rejected on !2,£h December 1978, he filed a Service appeal before the Service Tribunal, Islamabad The relief claimed by him in his appeal was that he was entitled to seniority in 3-6-1975 : The respondent was re-instated "in service in the rank of D 1. G of Police with immediate effect and until further orders". He was assigned a Grade 19 post in the F1A. 9-7-1975 : The respondent made a representation to the President seeking redress regarding assignment of a Grade 20 post on the main plea that he was promoted to the said Grade on 1-9-1974 and that the reinstatement should have been in that Grade ; 29-8-1975 : The representation was rejected and information regarding rejection sent to th. respondent through F.I.A. but according to his assertion, and findings by the Tribunal he did not receive any such communication ; 29-8-1975 : The Ministry of Interior, Government of Pakistan, sent a communication to the Director General, F.I.A. with reference to its forwarding note dated 23rd July 1975 stating, as a reply thereto, that the respondent's representation nad be-n rejected and further that he may be informed accordingly ; 30-10-1976 : The respondent was again retired compulsorily when he was serving as Inspector General of Prisons (D.l.G. of Police Grade 19) Sind ; 8-9-1977 : He again made a review petition to the President ; 13-6-1978 : He was again re-instated and appointed as Officer on Special Duty (Grade 19) in the Establishment Division until further orderswithout any entitlement to "any damages, compen sation or arrears of emoluments or other benefits for the period remaining out ot service" ; 24-6-1978 : The respondent again made representation for appointment in Grade .0 ; 23-11-1978: The respondent's representation was rejected with reference to the order dated 29-8-1975 to the effect that his similar request was considered earlier and refused ; 27-11-1978 The respondent asked for the copy of the order dated 29-f-l975 ; 12-12-1978 : The respondent was supplied the copy ; 14-1-1979 : The respondent filed service appeal before the Tribunal. The repeat representations or reminders to the main applications are not included in the foregoing data. Sect : ons22 and 23 of the Civil Servants Act (No. LXXI) of 1973; rule 10 of the Government Servants (Efficiency & Discipline) Rules, 1973 and relevant part of Section 4 of the Service Tribunals Act ( ^o. LXX> of 1973 which have been brought under discussion are reproduced below : (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or other wise of a person to be appointed to or hold a particular post or to be promoted to a higher post or to be grade ; and (2) ........................................................ " The plea of the learned Deputy Attorney General that the respondent's appeal before the Service Tribunal was barred by time has force, for several reasons. It has to be observed straight-away that the question raised by the respondent having once been determined by the competent authority against him in 1975, unless that decision was set aside, the challenge to the 1978 reiteration by the authority of the same earlier decision, will not be of any avail to him. It is in this light that the question of limitattion v/2-a-v/z 1975 decision becomes important. I If the time is reckoned from the date of communication of rejection of the respondent's (second) representation against order dated 3-6-1975 whereuby he was denied grade 20, the appeal should have been filed within 30 days lof the communication. There is factual controversy about communication. The Interior Division sent a letter on 29-8-1975 to the F.I.A. where the respondent was then serving, with a view to inform him about the decision. The respondent's review application was forwarded by the game Depart ment. Therefore, it is understandable that information was sent to him through the same agency. His plea that the letter of rejection of review application (dated 9-7-1975) was not communicated to him formally till he applied for copy and obtained the same on 12-12-1978, might be well founded but that by itself will not save the limitation. He had choice not to wait for the communication of the decision and file the appeal after the expirvof90 days of the period specified in section 4 (1) proviso (a) of the Service Tribunals Act. It is true that he was not bound to follow this course as the law permitted him to wait for the final order and file appeal against the same as provided in the purview of Section 4 (I). In that case naturally he would as a reasonable person, make enquiry at the time of the expiry of 90 days about the fate of review application. Had he done so he would have become aware that it had already been rejected. In the peculiar circumstances of this case therefore when the order/communi cation showing the rejection had already been received in the office of the F.I.A., his own department, the presumption about his knowledge can safely be raised under the general law. Therefore, the period of 30 days of limitation can be treated to have started on 29-8-1975 and/or on the expiry of 90 days after the filing of his representation when as observed above, in normal course he would have made enquiry about the result of his representation from the office of Director General, of the F.I.A., through whom he had sent his representation. Looked at from this angle Us appeal before the Tribunal was clearly time-barred. It is, however, to be clarified that in the circumstances of the case the Tribunal had the power to condone this delay. But condonation was neither sought nor granted under the assumption that the appeal was not time barred. The respondent's review petition against his second compulsory retirement filed on 8-9-1977 having been allowed on 13-6-1978, he made another 438 SC government of pakistan v. bashir ahmad khan PLJ (Muhammad Afzal Zullah, J) ground by the Tribunal, the appeal filed on 14-1-1979 was clearly time-[barred and should have been missedaccordingly. This Court has expressed the same view on the effect of repeated representations on question of limitation in several cases. Two of them are : Rana Ghulam Sarvrar Khan vs. Director of Inspection and Technical Developments [1981 P.L.C. (C.S) 112] and Syed Tajammul Mahraud vs. Secretary finance and others [1981 H.L.C. (C.S.] 127). We are in agreement with similar view expressed on the question of law by the Supreme Court of Azad Jammu and Kashmir in Fida Muhammad Rathore vs Azad Government of State of Jammu & Kashmir [PLJ 1983 S.C. (AJK) 27] though, it is further remarked, that apart from the question of la\y the grounds for condonation of delay will depend upon the circumstances of each. We also approve a similar view expressed on the question of law of limitation viz-a-viz repeated applications in some Tribunal cases : Muhammad Ahsan Khan vs. Information! Secretary & another (N L.R. 19 9 Service Tr. Fed 224) ; Muhammad Yousaf vs. Inspector General of Police [1983 P.L C. (C.S.) 337] ; and, Khusro Parvaiz ivlilik vs Secretary Ministry of Finance and another [PU 19<4 Tr. C. (Services) 29]. It also needs to be noticed that in a directive issued on 29th November, 1978 printed as Serial No. 14 : Under the H.-ad "Speedy Disposal of representations, appeals, etc." at page 684 of the ESTACODE, the Federal Government laid down certain guide-lines with regard to the remedies available under Section 22 of the Civil Servants Act, 1973. Para 2 of the directive reads as follows : "2. The Civil Servants (Appeal) Rules, 1977, as well as Section 22 of the Civil Servants Act, 1973, envisage only one representation from the Government servant in respect of a particular depart mental order by which he is aggrieved. On:j an appeal or representation is rejected by the competent authority, the Govern ment servant can go to the Service Tribunal. He has no right under the rules to submit further representation or a series of pepresentatjons to the appellate authority/next higher authority or to still higher authorities. In future such unauthorized representations will not be entertained." In para. 3 inter alia it is provided that "In cases where the competent authority has already rejected the first appeal/representation, a second or subsequent appeal/representation need not necessarily be replied to However, if a civil servant does not receive a final reply to his original appeal or representation and a period of six months has elapsed since the appeal or representation was submitted, he may send a reminder through proper channel to the appellate authority and endorse a copy of the reminder direct to the Secretary or Minister concerned enclosing also a copy of his original representation." And para 4 further provides that the Secretary/Hsad of the Dsoartment concerned would ensure that he is kept informed every month by a specific date of such pending appeals/representations and it woili be his personal responsibility to ensure equitable and quick disposal of such cas?s. For this purpose, the attached proforrna to the directive, it was further emphasised, must be put up to the Head of the Department/Secretary every month atongwith reasons for delay in the disposal. second choice, namely, to file an appeal to the Service Tribunal, when the departmental authority fails to pass any order even after the passage of 90 days of the filing of the appeal or review, etc, before it. Obviously although no final' order has been passed in this case, the period allowed to the civil servant for filing an appeal before the Service Tribunal in this case would be not les» than 30 days after the right to file an appeal has accrued to htm i.e., after the passage or expiry of 90 days." In the light of the foregoing discussion it is held that the respondent of the was not entitled to exclude the period consumed in the filing subsequent representations after the decision of his review applications each time that he was compulsonly retired. That being so, his appeal before the Tribunal in either case was time barred. This appeal accordingly merits acceptance on this finding. The impugned judgement is set aside. Before closing this judgement it needs to be clarified that this appeal has been allowed on question of limitation only and for that reason we have avoided discussion on merits lest it might cause prejudice to the respondent in the proceedings which as it emerged during the discussion, the respondent might file under Section 23 of the Civil Servants Act. That question arose in the context of the pleas of the contestant parties before us regarding the validity or propriety of the so-called promotion of the respondent (allegedly to grade 20) in September, 1974. Regardless of the fact whether it was promotion and if so, whether it was validly made, the fact remains that it had affected the rights of nearly a dozen officers who were then senior to the respondent. It is surpris ing that the Service Tribunal did not implead those officers when exa mining the question whether the respondent's plea regarding promotion to grade 20 could be allowed. Be that as it may, the respondent made a grievance of another type before us. According to him, notwithstanding the fact that his review applications against the two orders of compulsory retirement had been allowed and that he had been taken back in service in grade 19, he was subsequently punished in another way because nearly half a dozen officers who were junior to him in grade 19 in September 19 4, have been allowed seniority against him in that grade. The learned Deputy Attorney General was unable to accept or deny this assertion made by the respondent because it was not the subject matter of appeal. He, however, made a statement that if the respondent invokes the power of the President under Section 23 of the Civil Servants Act "to deal with the case of a civil servant in such a manner as may appear to him to be just and equitable", he, (the Deputy Attorney General) would, in fairness, place the correct position before the President if and when called upon to do so. With these remarks this appeal is allowed, but, there shall be no order as to costs. (TQM) Appeal allowed.
PLJ 1985 SC 448 [Appellate Jurisdiction] PLJ 1985 SC 448 [Appellate Jurisdiction] Present : aslam riaz hussain, muhammad afzal zullah & mian BURHANUDDIN KHAN, JJ MUHAMMAD ASLAMAppellant versus THE STATERespondent Criminal Appeal No. 31 of 1982, heard on 2-2-1985. (i) Pakistan Penal Code, 1860 (XLV of i860)
S. "02 read with Constitution of Pakistan, 1973Art. 185Murder Offence of - Conviction for Punishment Deceased allegedly committing murder of father of appellant about 12/13 years before oc- 9iirrence Revenge, however, taken by appellant only attaining age of 15 yearsHeld : Sentence of appellant to be reduced from death to imprisonment for lifeSentence of fine, however, being inadequate, same enhanced from Rs. 2,000 to Rs. 25,000. [Pp. 450 & 451J/4 (ii) Pakistan Penal Code, 1860 (XLV of I860)- S 195PerjuryOffence ofCourtDuty to award diterrerent punishmentHeld : Persons deliberately telling lie iq, courts of law to be awarded deterrent punishment so as to serve as warning to others in order to minimise litigation in courts. [P. 450]5 (iii) Pakistan Penal Code, I860 (XLV of I860)
S. 195PerjuryOffence ofCourtDuty ofWitnesses appear ing in court of law very often making bleatently alse statements against other persons even in cases involving death sentanceHeld : Court to take serious notice in case f witness deliberately perjuring himself. [P. 451]C Mr Ijaz Hussain Bata/vi, Advocate Supreme Court with Mr. M. A, Zafar. Advocate Supreme Court instructed by Ch. Muhammad Aslam, Advocate-on-Record for Appellant. Mr. Amar Raza A. Khan, Advocate Supreme Court instructed by Mr. Walayat Umar Chaudhry, Advocate-on-Record for Complainant. Mr. S M. Zubair, A. A. Q. Punjab a,nd Mr. Ijaz Ahmad Khan, Advocate«on-Record for State. Date of bearing: 2-2-1985, judgment Aslam Riaz Hussaio, J.-~This appeal by Muhammad Aslam is directed against the judgment of the Lahore High Court, Lahore, dated 16-6-1980, dismissing his appeal in a murder case. 2. Muhammad Aslam appellant was accused of the murder of his own uncle Mehdi Hassan. . The motive for the murder is stated to be that when he was a young boy of 2/3 years of age, his farther Hadi Hassan, disappeared and was suspected to have been murdered by his step-brother Mehdi Hassan (deceased) in the present case. When ths appellant grew up to be about 15/16 years old, he murdered Mehdi Hassan to avenge his father's death. 3. The facts of the prosecution case, briefly stated, are that on 25-7-1974 at 12 noon Mehdi Hassan deceased was in^in a Tonga alongwith Muhammad Hussain, Muhammad Naseem and Abdus Sattar, P. Ws. When they reached ear Basti Jammunwala. Muhammad Aslam appellant came from behind on a horse, with a gun in his hand, and hrew a, challenge to the deceased that' he would take revengj of his father's murder Abdus Sattar who as driving the Tonga stopped it and alighted from it. Muhammad Hussain and Muhammad Naseem P. Ws. .who were sitting in the Tonga also got down, and stepped aside. Mehdi Hasan deceased, however, did not move. uhammad Aslam appellant fired a shot at him killing him on the spot and then left, alongwith the gun, saying that he ad taken revenge of his fa.ther'3 murder. The matter was to imprisonment for life. We, however, feel that the sentence of fine imposed on him is inadequate. Therefore, after hearing his counsel on this point, we enhance the sentence of fine from Rs. 2,000 to Rs. 25,000 In default of payment of fine he shall suffer further R. 1. for 5 years If recovered the fine shall be paid as compensation to the hiirs of the deceased. With the above modifications the appeal stands partly allowed. 9. Before parting with the matter, it may be mentioned that Muhammad Hussain P. W. 8 committed perjury by concealing certain facts before a Court of law. We, therefore, issued him a notice on 82-1982. He appeared today in response to the said notice and was represented by Mr. Aamar Raza A. Khan, Advocate. On being questioned he admitted before us that Mst, Asia was his sister, but he added that she was his step-sister. He also admitted that she was married to Rana Suleman Khan, Advocate When asked why he had told a lie in the trial Court, he merely prayed that he should be par doned. 10. We are not satisfied with this plea and are strongly of the view that persons who deliberately tell a lie in Courts of aw and are proved to have committed this offence should be awarded deterrent punishment so as to serve as a warning to thers in order to minimise the litigation n Courts. We have been noticing over the years that very often witn-sses appearing in Courts of law make blatently false statements against other persons, even in cases involving the death sentence The reason for this, we feel, is that a general impression prevails in the public that one can tell lies on oath in Courts of law with complete impunity. This impressior, is strengthened by the fact that even persons who are held by the Court to be false witnesses are hardly even prosecuted. This in turn further encourages the tendency to make false statements in Courts which harcsulted in undermining public faith in the existing judicial systsm We, therefore, feel that serious notice should al\vays be taken by the Courts whenever it is apparent from the record that a witness has deli berately perjured himself. 11. We may also mention here that Ashiq AH D. W. 1 who appeared as a defence witness also found by the learned trial Court to have com mitted perjury. It may be noticed that the learned trial Court has observed at p. 37 of the printed book (line 12) that the hxplanation put forward by Ashiq Aii D. W. 1, was an afterthought, coined to attempt to save the life of his nephew Muhammad Aslara. it is urther observed by the life of bis nephew Muhammad Asiam. It is further observed by the learned trial Court at p. 43 (line 18 of the printed book) that : " .... He has tried to save Muhammad Aslam accused not by extending forgiveness but by telling a lie We, therefore, feel that the learned trial Court should have taken action against him as well. 12. As a result of the above observation we direct that the learned trial Court should proceed against P. W. it (Muhammad Husiam; aud D. W. 1 (Ashiq All) under section 476, Cr. P. C. and consider prosecu ting them for offence under section 195, Cr. P. C, Appeal dismissed, THE END
PU 1985 Tr PU 1985 Tr. C. (Services) 6 [Federal Service Tribunal, Islnmabad] PRESENT: shah abdur rashid, chairman & brig. abdur rashid SI (M) \ReTt}.), member MUHAMMAD SABIR-Appellant versus DIRECTOR GENERAL^ Population; Planning, Lahore4Bwfcs Another Respondents Appeal Ho. 53 (L) of 1980 , 4 decidcd on'5-l-t9t4. (I) Service Triha»ats Act (LXX of 1973)-
S. 4 read with Government Servants (Efficiency & Discipline ) Rules , 1975-Rf. 5 & 8 (a)Government servantConviction of- Termination of services on ground ofOpportunity of being heard Requirement ofAppellant convicted- and sentenced for offences under Ss. 307 A 323 Order of terminatioa j>fservice, however, passed without taking into consideration facts and circumstances of offence and without giving him opportunity of being heardtteM : Order to be patently illegal and without jurisdiction. |T- V\F (ii) Government Servants (Efficiency & Discipline) Rule, 1973- f«-Rr 8 (a) & 5-Gpvernment servant Conviction ofEffect of-^ Removal from «erviceEnquiry procedure .for Requirement ofAppellant convicted and sentenced for offences under Ss. 307 & 323 HeW : Fact of appellant's being guilty of offences though standing established, conviction automatically not to briug to end his service as wellProvision in clause (c) of rule 8, however, dispensing with requirement of show-cause noticeHeto : Provision (in so far as it dispenses with requirement of show-cause notice) being violative of " principle of natural justice to be ultra vires of rule making power of Government. [P. 9 )Jt &C (Hi) Government Servants (Efficiency & Discipline; Rules, 1973 R. 8 (a) read with Civil Sry«s Ax (LXXf of 1973) - S. 25- Avdi alterant partem~-Prin&$& ofApplicability ofCivil Servants Act nowhere roviding hat right of hearing before adverse order be passed to be (competently) taken away by rules made under ActHeld : Rule 8 (a) of Efficiency and Discipline ules not to be read so as to take away right of natural justice requiring that. no person to be condemned without gtving opportunity of being heard. (P. 9] (If) NtmlJnstice- ~~Audi atleram partem Principle ofApplicability of Held : Rule that no one to be condemned unheard to be read in every enactment even though such provision not forming part of law itselfHeld farther : Law maker atone being competent to take away right of person, of being heard, Parliament or person exercising power of parliament unless so proving, rules made under law not to deprive , such person of being heard before adverse action be taken against him. rP.9 ]Z
PLD 1964 SC 461 rel Population Planning Council
Employees of^Services ofHeld :' Services of employees of (de funct) Population Planning Council/Board having already been govsrnmentalised with ffect from 20-4-1977, every employee of said Cbuncil or Board to become civil servant from that date. [P. y\4 ( it ) Government^ertants (Efficiency & Discipline) Rules, 1973 -Rr. 5 & 8 (a) See : Service Tribunals Act (LXX of 1973)-S 4 [P, 9]F 'Mr. Khalid Farooq Tiwana, Advocate for Appellant. Hafts Tariq Naseem, Counsel for State. Date of hearing : 28-12-1983. Iwtte Shh AWnr RashM, Cbairdan Tbe appellant, white serving a> Field Motivator in the Population Planning Department, was involved in case under section 307 read with section 323 of the Pakistan Penal Cole He wa» suspended from service with effect from &6«77. The trial of the criminal cose ended In his conviction on 28-10-78, and he was sentenced to undergo rigorous imprisonment for three ears,, .In appeal, however, the court of Session on 16-5-79, while uphol tion, reduced the sentence of imprisonment to that'«4i Thas virtually, the apptflpnt uffered a senteni 4>F about seven months. 2. The District Population Officer, by order dated 16 -3-1980, nated the services of the appellant retrospectively with effect 18-6-77, i.e. the date of uspension, on the ground of his conviction and his sentence. His departmental appeal having been rejected, the appellant has invoked the jurisdiction of this ribunal by way of appeal Under section 4 of the Service Tribunals Act (tXX of 1973). 3. The learned counsel for respondent department, at the very out et , raised a preliminary objection that when on 26-3-1980, the appellant's . services were terminated, he was not a civil servant; and as such, be can not invoke the jurisdiction of this Tribunal. Similar objection had been raised in numerous cases, which we have already decided. Trie services of the employees of the defunct Population Planning Council/Board were governmentalised with effect from 30-4-77, and we nave consistently held that from that date, every employee of the said Council or Board-became 'a civil servant. Reference in this respect may be nnde to the case of Ria Ahmad Bilg v. Secretary, PopaUtion Planning Division Islamabad »nd 2 others f PU 1983 Tr. C. (Services) 66]. . 4. The learned counsel for the appellant has- argued that no oppor tunity was given to the appellant to explain his position before the depart mental-authorities and that he has been condemned unheard. It was also argued that the order of termination of service is patently illegal, inas much as it was intended to have retrospective operation which w, not authorised by law. 5. As far as the order of termination being retrospective is con cerned, the learned counsel for respondent department reluctantly eonceded that it could not to be so passed, but argued, that despite the illegality in the order, the appellant cannot be reinstated into service and that this Tribunal can only alter the date of .termination of service, so as to make it effect-iye, from date of passing the order of termination, i.«. 26-3-80. According' to him , it was only a technical defect and can be corrected. 6. With regard to the second objection, the learned counsel for respondent department has argued that the appellant having been convicted by acourt of law, it was not .necessary to give him opportunity "of being heard. According to him, where a civil servant is convicted by a court with punishment of mprisonment of fine, action against him terminaMng bis services without giving him show-cause notice, can be taken at the relevant rules do not require the giving of ny such notice. It was also urged that the appellant was duly heard by a court of law and the convic tion was based on evidence recorded. in his presence, which proved his guilt beyond reasonable doubt. ' 7. No doubt, the fact that the appellant was guilty of offence for which be was convicted and sentenced, stands established and is not open to challenge,nevertheless, it cannot be said that the appellant's conviction automatically brings to end his service as well. Clause (a) of rule (8) of the Government Servants (Efficiency and Discipline) Rules, 1973, provides that where the accused is dismissed Or removed from service or reduced in rank on the ground of conduct which has led to sentence of fine or imprisonment., rule 5 /6/rf»-relating to inquiry shall not apply. We are,'however, of the opinion lhat provision in clause (a) of rule 8 ibid, in so far as it dispenses with the requirement of show eause is ultra vires the rule mak ing power of tbe Government as it violates the principle of natural justice .that oo one shall bs condemned unheard. This rule has to be read in every enactment even though such a provision does not form part of the law itself, and we see no reason, why even in the absence of provision of right of hearing, we should not read that every person who is to be con demned should be heard before action is taken against him. It is tbe law maker alone and by the word law maker, we mean the Parliament or the person exercising the power of the Parliament, that can take away the right of a person of being heard. Unless the Parliament or th'e person exercising tbe power of the Parliament so provides, tbe-rules made, unde the law cannot deprive a person of being heard before ant adverse action is taken against him. This principle was considered by tbe Supreme Court in the case of Sh Abdnr Rahman, Advocate v. The Collector, aad Deputy Commissioner (PLD 1964 SC 461), and it was observed that the Governmem cannot, by framing a rule, take away the right to show cause Which a person has on account of principle of natural justice. The right, it was further observed, could have been taken away by the provision in the law itself, but if the-law does not take away such a right, then the rule making authority cannot take it away. Since the Civil Servants Act (LXXf of 1973) does not provide that right of hearing before an adverse . order is passed against a civil servant can b: taken away by the rules mid: under the Act, rule 8 (a) ibid shall not be read so as to take away that right of natural justice, requiring that no person shall be condemned without giving opportunity of being heard. Even the language of rule 8 (a) ibid does not contemplate, that'any person who has been sentenced t j pay a ne or to undergo imprisonment shall have to be reouved from service or reduced in rank. Every cause has to be examined on its own merits and the authority making the order is expected to take into con sideration the nature of the offence, its severity and the circumstances under which it was committed. The order of termination of service of thi appellant in this case being made without taking into consideration th facts and circumstances of the appellant's offence and without giving th appellant opportunity of being heard, which, as already stated is a righ which cannot be taksn away by the rule making authority, is pat inly illegal aad without jurisdiction, and we have no. hesitation in setting aside. 8, Tbe result is that this appeal is accepted, the order of termi nation of service of the appellant is set aside and he is reinstated into service with effect from the date his services were terminated. The departmental authorities, however, at are liberty to proceed afresh ag& iost the appellant by giving him opportunity of being heard and of explaining his position. I(f qo such proceedings are initiated afresh against the appellant, then he shall be entitled o consequential benefits of reinstatementthe period in which he remained in prison to be treated as period spent on extraordinary leave without pay. If, however, the departmental authorities roceed afresh against the appellant, then it is for them to pass such orders as they deem fit with regard to the period the appellant did not actually perform his duties 9. Panics to be informed. (TQM) Appeal accepted.
PLJ 1985 Tr
PLJ 1985 Tr. C.
(Services) 10
[Federal Service Tribunal, Islamabad
]
Before
: A. O. R RziUR rahman
& brig.
abour rashio
SI
(M)(RETD.l, member
Syed
GULZAR HUSSAIN SHAHAppellant veisus
ESTABLISHMENT
DIVISIONRespondent
T
Appeal No. 92 (R)/198I, decided on 50-10-1914.'
(i) CIVlLServants Act
(LXX of 1973
- S, 13 (H) lead with Service Tribunals Act (LXX of 1973) $. 4
A
Provisional
Constitution Order (CMLA's 1 of 1981) Art. 13<1) Civil servant
Retirement on completion of twenty-five years of service Challenge to Service Tribunal
Jurisdiction of Bar of
Competent authority retiring appellant uader S. 13 (it) of
Civil
Servants
Act after bis completion of 25 years of service ppellant challenging order ob ground that bis service record justifying no such
_ action, his retirement ordered to help case for promotion of some .of bis juniors Hostility of Chairman of Review
Committee also alleged
' before Tribunal Held : Jurisdiction of
Service Tribunal in respect of appeals against orders passed under S. 13'ii) having been barred, Tribunal not to be competent to go into merits of allegations levelled by appellant. {P.
\3]A
(ii) Service
Tribunals Act (LXX of 1973)
-- S.4 See: Civil
Servants Act (LXXl of 1973) - S. 13 (ii).
IP
(III) Provisional
Constitution Order (CMLA's 1 «f 1981)-
-- Art. 13 (l)-tfee :
Civil Servabts Act (LXXl of I973)-S, 13
(H).
Mr. M. S. Siddfqui.
Advocate for
Appellant.
Syed Shahudul Haq, Counsel for Respondent.
Pate of bearing : 22-4-1984.
judgment
A. O. £aziur Rahman, Member.The
Appellant, who was an officer v of the Income Tax Service, was promoted as
Commissioner of Income
Tax (Grade 20) in the year 19?S, ,^Sy an,ojder dated 22-11-1980, he was retired under section 13 (ii) of tbeCivil Servants
Act, 1973, after he had completed 25 years of service. Having preferred a review petition before the President against j&e above order, and not haying received any reply thereto, he came in appeal before the Tribunal unocr section 4 of the
Service Tribunals Act, 1973. The apj&eal htviag been admitted, was finally heard on 22-4-1984 ^ndi^Ving disposed of by this orderv 2. 'The case of the Appellant Is that, having been selected as a result of the
Central
Superior
Services
Examination, he joined the Pakistan
Taxation Service in 1954 as an Income Tax Officer.
Thereafter, he con tinued to earn promotions step by step till his appointment as Income Tax
Commissioner (Grade 20) in January, 1975.
After that, five A. C, Rs, .were written on him for the years 1975 to J979 and in these he was graded as "Good" in four reports and considered fit for promotion in as many
^ as 3 (for the years 1977, 197| fnd 197$).
It was only in th# ACR for the year 1976 that he was assessed a
;
'SS^ra|e" and not considered fit lor promotion.
For this reason, according to the
Appellant, there could be no justification for deciding to retire him from Service under section > 13 (if) ofthe Civil Servants Act, 197.3.'
Besides this, it is bis cpnlentipsn that the over-all recorS was also satisfactory and could not justify the impugn ed order.
In support of this stand, it has been pointed out, on his behalf, that, in the summary submitted by the
Chairman, Central
Boaid of
Revenue, to the President, in connection with the review petition submitted by the
Appellant, the Chairman had stated that, out of the 36 A'. C. R?. written on the Appellant by different reporting officers, as many as 60% rated him as either "Good'or "Very Good" and only 40% considered him, as
"Average", there being no "Below Average" Report
It has also been pointed out. on his behalf, thai the recommendation ol the
Review
Committee; on the basis of Which tie l^i^nt%^sed the ---
J
' wm n
1985 Tr 1985 Tr. C. (Labour) 25 [National Industrial Relations Commission blamabad] Before : Aziz ahmad, Member MUHAMMAD YUSU^ KHATTAKAppellant versus MUSARAT ALI and 14 OthersRespondents Appeal No. 12 (S3)/84, decided on S (i) Industrial Relations Ordinaocc (XXIH Of -- Ss 8 fn & 22-B Trade Union - Of^^^-C3»«t« in- Provisional approval of Rival group raWffgfliap^Jiiwwit order 6f provisional aoproval of change n office»bejiirs of $»l;Mi i ~HM ' Appeal against such order (of Registrar NIRC) bW, majjfftMble, Commission to (be competent to) take cognizance itallW SL 8(7) of Ordinance. , {?, (H)- Election dispute 'Voters list Objection regarding Failure to raise at proper j Effect of Outgoing Gederal Secretary ofunioa intentionally including Security and Fire Fighting Staff in voters list Appellant though in / knowledge of such inclusion, raising no objection against. same , Defect even not pointed out to election Commissioner Held : No. protest having been raised against inclusion of such staff in voter ' list, appellant not to raise objection after losing election. [Pp. 28 & 29 }2k (tii) Election dispute - - Election Validity of Challenge to VotwCottnting of- Appel lant securing only 20 and 24 votes -respectively for posts at Joint Secretary and Vice President as compared to rival candidate's securing 1609 and 1673 votes Only 346 out of t.ota) number of ' 27? 7 voters cot casting their vote - Appellant contending 354 members belonging to Secarity and Fire Fighting Staff being not competent-voters, whole election to become invalid and illegal due to their participation Held : Respondents having lead by compart able majority oa . basis of votes east even without counting extra 6te»; election not to be held void HeM fortber : Genuine voters ; apparently favouring respondents (as compared with appellant) not to be disenfranchised by holding election void. [P. 29]C PLD 19e8 SC 331 re/, (h) EUction dispute -- , Election Validity of -
Challenge to Reelection Ground v for 'Appellant remaining 'silent and not raising any objec- , tion against inclusion of Security and Fire Fighting Staff in voters . .' list before going to polls Held: Re-election to be ordered on ground of such staff having been inadvertently included in voters list Respondents having clear majority over appellant (even) »8u» :- exclusion of excess voters from'count Held : Genuine voters not to ,; to be disenfranchised on account of sush excess votes. ^ [P. 30)D Mr. Shamsuz Zamari, Advocate for Appellant. Ch. Sadiq Muhammad Warraich, Advocate for Respondents Date of hearing: 18-10. 1984. OkDEK Thit appeal under section 8 (7) read with section 22-B of the IRQ, 1969 has been submitted by Muhammad Yusuf Khattak Surveyor in Oil and Gas Development Corporation, Jamshoro District Hyderabad against Musarat AH, Superintendent and 14 others The appellant who is a Surveyor in the Pakistan Oil and Gat' Development- Corporation it a Tr. C. 27 member of Pakistan ,Oil and Gas Development Corporation Employees Union registered .with the NIRC as an indu trywise r4.de union. The membership of this union is spread alt over the country as the, employees working at different locations are members of this union. . 2. It has been submitted that Annual Elections of the union were announced to be held on 31-7-84 ted the respondent No. I was appointed as Chief Election Commisgoscr. Tbe appellant filed his nomination papers for tbe posts of Vice fresident and the Joint Secretary which were accepted by the espondent No. 1. The Security Staff of the Corporation bad illegally got their membership of the union and fully participated in the elections. They atoagwith respondents No. 2 to IS formed a group and fited the nomination papers of the respondents No. 2 to 15 for diffe rent posts. They were allotted the symbol of Crescent and Star and there after they lodged joint election compaign. It has been alleged that aout 500 to 600 employees of tbe Security Staff of the Corporation fully supported the respondents No..2 to 15 and also pressurised and intimidated the member? of tbe union and got their-votes east in favour of the respondents and got them elected in the said Annual Elec tions. It has also been alleged that one of the members of the union namely Wazir Ali >who was supporting the, rival candidates was beaten by tbe Security Staff. A complaint was lodged by him before the Director Admn. OODC and the Departmental enquiry is being conducted. 3. It has been submitted that in view of the said facts the appellant stopped bis election-compaiga and retired from contesting the election. Similarly about l/3rd of the members of tbe union did not cast their votes and toe respondents No. 2 to 15 were declared elected. The appellant reported this fact to tbe Chairman, and the Registrar of tbe Commission and t fried an application under section 8 (7) of the 1RO, 1969 The Registrar NlRC accepted tbe change of office bearers o. tbe union pro visionally subject to verification and hence this appeal. 4. It has been submitted that the order dated 21-8-84 is illegal inas much tbe Registrar of Trade Unions lias no powers to accept the change provisionally as no reasons have been given for acceptance of this change provisiohally. The Registrar of Trade Unions also erred in law and failed; to note that the non members of the union that is Security Staff not only t'tbejr votes in favour of rspondents No. 2 to 15 but had lodged' full election compaign'in fav\ ur of the respondents and got the "o, 2 to 15 elected in;the annual lections of the union. Toe trar of thc'Trade Union.ajso failed'to not that due,to the pressure on the voters of the Security Staff ibout 1/3rd voters did not cast ?he»r votes and as such tbe election as a whole became invalid and illegal due to the participation and indulgence of the Sc-.i";») Staff in the elections. 5. The learned Counsel for'the resrw.dcnts submitted that in the OG DC there were about 3100 workers who arc members of the OG DC Employees Union and that this wa» Uie only union in the OGDC and was certified as CBA. The elect'icn of this union are held after e\ery two'years. The election were held on 31-7-S4 ; vJei intimation to this Commission. The respondent No. 7 Mi-naiuina.! Ashttr; -..ccare'O 1649 vr.ti.s as .against 762 Obtained by his rival S. rial Huviuin. "1 A. r za! B'jssam was the Gcr.e-al Stvr^ary during tbe previous-term :<.tu !'(be la«r 15 years ' tary he secured 20 votes whereas bis r vr- H»q beea elected as Joint Secretary Secured President be secured 24 votes as against 1673 who. has beea elected as Vice President. the total number of .employees of OGDC esta Security and Fire Fighting Staff is 354, the learned milled that even if it Hi presumed that all the employees Security and Fire Fighting Staff voted for the elected candidates 354 votes are excluded from the count of every elected candidateseen that the result of the election will not be affected at ail as thecandidates lost by a great majority of about luOO votes or so. Noae of-thrcandidates has challenged the election except the appellant. It has tbeft>- fore, been prayed that the order issued by the Commission Tnay^:%e vacated i 6. 1 have also heard both the learned Counsel jo detail. It has_ submitted by the learned Counsel for the respondents that the appeal is competent against the order of provisional approval and that the appeal wm . mala fide and was being financed and backed by the ex-General Secretary S. Afzal Hussain. I bold that the appeal is maintainable as the rival group hat 1 raised a dispute and the Commission .can take cognizance under section (7) of the IRC, 1969. He further submitted that, the appellant has secured 24 votes for the post of Vice President as aglinst 1673 secured by Anwarul Haq, who has been declared,.elected. For the post of Joint Secretary he secured 20 votes, as against 1609 secured by Muhammad Rashid who has been declared elected as Joint Secretary. The. preparation of voters list and 'the conduct of polls etc. was fully in the hands of S. Afzal Hussain, defeated General Secretary, who remained in power for the last 15 years and the appellant belonged to bis group. It has been submitted that the Security Staff openly, supported S. Afzal Hussain .and his group and the appellant and for this reasons the appellant did not remove the y^ Security Staff and the Fire Fighting Staff from the list of voters. As r
the exact number of instances as would be sufficient to wipe out'the majority of the returned candidates". 11. TheOQ0C.establishments are spread all over Pakistanis fw Bung areas and the employees are members of only one union, ft must^ > nave consumed a lot of ii«j;» of the Corporation as well as of the union, officials in holding 4he flection. It will be improper to order tfcf.reelection on the ground that the Security and the Fire Fighting Staff was inadvertently included in the voters list. The objection If any.should aate beeo raised by the appellant before going to the polls and it appears that they kept silent to see if they win the election and if they did, not wifi "they would raise the objection rslating to the inclusion of Security' aa4 Fire Fighting Staff in the list of voters. To my mind the " appellant him self could be held responsible for this state of ifTdirs and this should not prejudice the respondents case who had a clear majority over the appellant after exclusion of the excess votes from the count Jhe genuine voters cannot be disenfranchised on account of these excess votes. 12. In view of the above discussions, I reject the appeal and recall toe stay order dated 23-9-19S4 granted\by me (TQM) Appeal dismissed
PLJ 1985 Tr PLJ 1985 Tr. C. 30 [Punjab Labour Appellate Tribunal, labor Before ; Justice (Reto ) abdul ghafodr lodi Syed MUHAMMAD ZIKRiA-Appellant; versus -CRESCENT GHEE MILLS, Chicha Watni DirectorRespondent . 'Appeal No. SL-69 l 84-Punjab, decided en 20-6-19S4. (I) I«doBtri»l Dispate WorkmenTermination ofAppellant, ioap clerk, admittedly not fit to work as oil clerk outside Mrtls Reipondcnt terminating services of appellant on ground of bis unfitneis to worK as oil clerfc-! Held : Appelta.«t, being totally in^apdtle 'of working a-- oil clerk, termination of bis" services to be justified. [P. 3l]£ (II) Industrial Dispute - EmployeeTransfer ofHeld : It bemg prerogative of employer to transfer employee to some oiber post, employee to have no righftd 1 b: posted or retained on articular post Held further : : Tran4f-rs competently made in exigencies of service not to dc set aside unless mala fid be proved. |P. 3]4 Mr. Nazir Ahmad Naz, representative ot th-s Appellant. Mr. Atadullah Sldaiqui , Advocate for Respondent. Judgment The appeal titled above arises from tbe decision dated 23-1-1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 9, Multan . whereby the nerance petition of tbe appellant, for his reinstate ment in service was dismissed. ' ?.. The appellant was a soap cjerk. He was transferred as oil clerk. He did not obey the tt|rafer , order on the plea that be was cot medically fit to travel to purchase the oil. He was charge sheeted and after holding an enqu;ry wa« dismissed from service. Hfs petition given tinder section 2;-A was accepted and he was directed to be reinstated io service but tbe respondent was allowed to hoid fresh enquiry. The respoodent instead of holding fresh enquiry tcrraimted the appellant on his plet that he was not fit to work as oil clerk outside the Mills. His petition under section 25-A has been disallowed, hence tins appeal. 3. It has been argued by tbe learned counsel for the appellant'that since the allegation was of misconduct, the appellant could not be termi nated without following the procedure given and r Standing Order 15(4) particularly when the leatned lower court had previously allowed the -respondent to hold fresh enquiry. The allegation for Iwhieb the appellant was previously dismissed was non-eompliapce of the order of bis transfer. From the very beginning the plea of the appellant was that bis health did oot allow him to travel and work outside the. Mills. Enquiry was -to be beld to find out if the plea of the appellant was correct and justified. Now the respondent does not contest tbe plea and admitting it has terminated tbe services of the appellant on the ground of his admitted unfitness to work as oil clerk. On account of admission of the plea holding of enquiry was not necessary. So the termination of services is not on account of any misconduct, Since it is admitted that be is oot fit to work as oil clerk, so disobedience of transfer order did not amount to miscon duct and for this reason holding of enquiry and dismissing tbe appellant was not.called for. It is the prerogative of tbe employer to transfer to employee to some other post. I fan employee says that he is not fit toj perform the duties assigned to him, the employer is not obliged to retaioM him m service. The employee has no right to say that be be potted/ retained on a particular post. Transfers in the exigencies of set-vice cao be made and unless mala fide is proved, they cannot be set aside. It has oo doubt been argued by the learned counsel that the appellant got detected a case of avoidence to pay income tax by deceitful means but there is no material to substantiate this plea. Reference has been made to the copy of the judgeojint, Ex. P-5 of tbe Labour Court , Multao but in this judgement the matter of idcome tax it mentioned at a fact urged . by the appellant but it has not been, found that the plea bad been proved. So op victimization or rnalafidt bet been established. On bit own plea of incapability to work at oil clerk, the appellant bat been terminated, to oo proof of tbe matter was necessary. No rule, or standing order of the Mills have been shown to tbe effect that in such circumstances the employer is, legally bouod to provide s,ome alternative job to the workman. If the appellant's plea had been that for some short period he could n ' work at oil clerk of coarse, there could have some ground to interfere his case is that be it totally incapable of working at oil clerk. In tbes circumstances tbe respondent was justified in terminiating bit services tt the grievance petition wat rightly disallowed 4. As upshot of the observations made above, the is thus dismissed Present appellant in person. Appeal dismissed
PLJ 1985 Tr PLJ 1985 Tr. C, (Labour) 32 [Sind Laboor Appellate Tribunal, Karachi ] Before: JulrlcE (RBTD.) G- M. kourejo CHAIRMAN, AGRICULTURAL. DEVELOPMENT BANK 2 OthersAppellants versus HIDAYATULLAH ABRORespondent Appeal No. SUK-87/1982, decided on 8-4-1984. (I) Inintrial & Commercial Employment (Standing Order) (W, p. Ord. VI of 1908) S. O. 15 (4)Time barred charge-sheetCompetency of of miscotuiuct not brougbt to notice of respondent within one month of date of such isconductHeld, Charge-sheet, to be time-barred and incompetent in law. [P.34]f (if) Industrial Dispote -Domestic enquiryFairness, independent and impartiality of Enquiry oflScer not examining material witnesses Statement of respondent recorded in question answer formEnquiry officer failing' to produce statements of witnesses in Court and himself considering enquiry and consequently passing dismissal order . of respondent . . Presumption regarding such statements being not in existence or . they having gone against appellants arisingmid : Domestic,enquiry suffering from serious infirmities to adversely affect fairness impariality and Pro of enquiry Contention that Court not to go behind enquiry to consider merits of caseHeld : Contention not to be tenable in view of clear provisions of S. 25-A (5) of IRQ Industrial Relations Ordinance (XXIII of 1969)-S. 25-A (5) & Industrial & Commercial Employment {Standing Orders; Ordinance (W. P. Ord. VI of 1968J-S. O 15 (4). |P. 54jv<, B & C Mr. Tanwari Khaliqdino, Advocate for Appellant. Mr, Hauan HBm^f r Advocate.for Respondent. Date of hearing : l4-3-i984. % order e 2. the facts leading up to the appeal briefly rtated respondent, Htdayatullah was working as Recovery Assistant the appellant bank. During the course of his employment, it was against him ; firstly, that while posted at Garhiyaseen he made recover IU.700/- from Murad Mi,.vOe Receipt No. 55, dated manipulating the record deposited only Rs, 200/- wherea,s Tbis appeal is directed against the order, dated Sind Labour Court No. VII at Sukkur ordering retpondent with.full back benefits. the remaining amount of Rs. 500/- secondly, that while posted as Recovery Assistant at Jacobabad he issued Notices under section 82 of Land Revenue Act, dated 5-10-1979 and 5-11-1979 in the name of Malopk s/o Ramzan and Allah Dad s/o Ali Bux respectively without any authority vested in him; thirdly, that he lost the Cash Receipt Book Report on 17-10-1979 on account of extreme negligence on his part; and fourthly that he misapplied the conveyance advance sanctioned to him vide Head Office Memorandum, dated 6-2-1979 by disposing of purchased Motoreycle more than one without permission of the bank and could not present the same before the enquiry officer on demand on 23-9-1980. He was charge-sheeted, vide OSje Memorandum, dated 29-10 1980. Hs furnished his explanation to the charga-shaet and after an enquiry he was found guilty of tha charges and was dismissed from sarvica by the order, dated 8-4-1981 passed by the Assistant Director (Operations). He servsd grievance notice on the appellants and his grievance having not bsan redressed he filed an application under section 25-S, 1. R. O., 1969 before the learned Labour Court as stated above. The learned Labour Court record ed evidence, the appellants examined Abdullah Shaikh. Assistant Director (Operations) and the respondent examined himself. The learned Labour Court ultimately allowed the application of the respondent directing bis reinstatement with back benefits. Aggrieved by the order the appellants have come in this appeal. 3. I have heard the learned/Advocates for the parties, Mr. Tan wari for the appellants and Mr. Hassan Hameedi for the respondent. I have also perused all he evidence on the record, examined by the learned Labour Court as well as by this Tribunal during the course of the appeal proceedings. In view of the contentions aised on behalf of the parties by their learned counsel the questions that would arise for consideration are ; firstly, as to whether fair, independent and proper domestic nquiry was held before the order of dismissal, dated 8-4-1981 was passed against the respondent; secondly as to whether the charge sheet was time-barred and, therefore, illegal in view of the provisions of Standing Order 15 (4) of the Standing Orders Ordinance, 1968 ; and thirdly as to whether the dismissal order, dated 8-4- 981 was passed by a legally competent authority. 4. As regards the question concerning the fairness, independence and proprietary of the domestic enquiry is concerned, admittedly statements of witnesses were not recorded by the enquiry officer. Mr. Abdullah Shaikh, the Assistant Director (Operations) examined on behalf of the appellants has admitted in his cross-examination that he was appointed as an enquiry officer by the Regional Manager. He has further admitted that he had examined Mohammad Mehar Panhwar, Loan Supervisor on behalf of the bank. He further admitted that he was not produced the statement of Mohammad Mehar Panhwar in the Court. He has also mitted that he had recorded statement of Manager, incharge of the appellant bank Naudero. He has further admitted that he had not recorded statements of Jitnesses, Murad Ali and Allah Dad. According to him he had felt that their statements were not necessary as there was recorded proof against the respo dent. ccording to him he had not examined Manager Zaheeruddin, Incharge of Jacobabad Branch. According to him further he had recorded the statement of the respondent Hidayatullah but it was in Question & Answer form. In fact on the admitted facts of the case either he had not recorded any statements or if at all he recorded any such statements as stated by him he has failed to produce the same before the appeal fails and 5. As upshot of the observations made above, the is thus dismissed. Present appellant in person. Appeal dismissed.
PLJ 1985 Tr PLJ 1985 Tr. C. (Labour)35 [ Punjab Labour Appellate Tribunal] . Before : justice (retd.) muhammad abdul ghafoor DARSHAN DARVESH-Appellant versus CULTURAL CENTRE OF ISLAMIC REPUBLIC OF PAKISTAN , Lahore through its Director and AnotherRespondents Appeal No. Lhr. 2/84-Punjab, decided on 11-12-1984. (i) Industrial Relations Ordinance (XXTII of 1965)
S. 25-AGrievance petitition Rejection of Held : Grievance petition to be rejected only in case of its not disclosing any cause of actionLabour court dismissing petition in limine on ground of petition being not competent against diplomatic agentAppellant, however, given no opportunity to refute such allegation - Held : Petition in case having disclosed cause of action, same not to be rejected summarily. [P. 36J/4 (ii) Evidence Act (I of 1872) -S. 114Notice Service ofNotice issued to respondent by registered post not coming back unservedHeld : Such notice to be presumed to have been served. [/>. 36]5 Mr. H. R, Haider, Advocate for Appellant. Nemo for Respondent. Date of hearing : 4-12-1984. judgment The decision dated 3-12-1983 recorded by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore has been challenged in this appeal, whereby the grievance petition of the appellant was dismissed i'm limine without affording him opportunity to prove the case. 2. The learned lower court has observed that the respondent is a diplomatic agent and thus could be sued only under section 86-A C.P C.This is not understandable from where the learned lower court has learnt that the respondent is a diplomatic agent. The appellant has not described the respondent as such in his grievance petition and there is no written statement as no notice was issued to the respondent. Even if the learned Presiding Officer was of the view that the respondent was a diplomatic agent and could be sued, he should have afforded opportunity to the lappellant to disprove such an impression. Needless to say that grievance .[petition may be rejected only if it does not disclose any cause of grievance 'las plaints are rejected under Order 7 rule 11 C. P. C. The grievance peti- Ition does disclose a cause of grievance, so it could not be dismissed/ rejected summarily. I 3. Notice of appeal was issued to the respondent by registered post eland since it did not come back unserved, the presumption is that it was perved. Notice was sent by post as the notice sent through Process Server had come back with the report that the officer had said that it,be sent by post. Since no body appeared, so the appeal was heard ex parte on 4-12-1984. 4. As a result, the appeal is accepted ex parte and setting aside the impugned decision, the case is remanded for hearing and decision in the conventional manner. Appeal accepted.
PLJ 1985 Tr PLJ 1985 Tr. C. (Services) 129 [Federal Service Tribunal, Islamabad] Before ; muhammad irshad khan & maj. gen. ch. A. rahman khan HI (M) (retd), members GHULAM MUSTAFA-Appellant versus PAKISTAN INTERNATIONAL AIRLINES CORPORATION, Rawalpindi.Respondent Appeal No. 106 (R) of 1985, decided on 1-7-1985. (!) Service Tribunals Act, 1973 (LXX of 1973)-
Ss. 4 & 6 read with Pakistan International Airlines Corporation Act, 1956 (XIX of 1956)S. 10 (2) [as amended by Pakistan Inter national Airlines Corporation (Amendment) Ordinance, 1984(LIHof 1984) S 2J Pakistan International Airlines Employees of Dismissal from service ofAppeal to Service Tribunal Limitation forBar ofAppellant dismissed from service as Accounts Officer of Corporation on 2-11-1981Appeal against such dismissal, however, filed or 25-4-1985 after promulgation of Ordinance LIII of 1984No suit, appeal or application of appellant admittedly pending on com mencement of OrdinanceEven no application or explanation for condonation givenHeld : No case for admission of appeal having been made out, appeal to be dismissed as incompetent. [P. 130J-4 (ii) Pakistan International Airlines Corporation Act, 1956 (XIX of 1956)
S. 10 (2) [as amended by Pakistan International Airlines Corpora tion (Amendment) Ordinance, 1984 (LIII of 1984)S. 2JSee : Service Tribunals Act, 973 (LXX of 1973)Ss. 4 & 6. [P. 130]^1 Mr. Asmat Kama! Khan, Advocate for Appellant. Date of bearing : 26-6-1985. order Muhammad Irshad Khan, Member.The appellant, by way of the present appeal, seeks to challenge the order dated 2-11-1981 whereby he was dismissed from service as Accounts Officer, Pakistan International Airlines Corporation (hereinafter referred to as the Corporation). The appeal, on foe face of jt, is hopelessly time barred. There is, n.tit.h,e.r any application nor any explanation for condonation of delay. The learned counsel for the appellant, however, urged at the bar that it has been declared by the Pakistan nternational Airlines Corporation (Amei dment) Ordinance, 1984, (hereinafter referred to as the Ordinance) that the employees of the Corporation shall be deemed to be the civil servants for the purposes of the Service Tribunals Act, 1973. Therefore, this Tribunal, for the purposes of the employees of the Corporation, shall be deemed to have been established on the 15th of November, 1984, when the said Ordinance came into force. In the submission of the learned counsel, therefore, this appeal could be filed within six months from the 15th of November, 1984. The contention is totally misconceived and fallacious. For, according to section 6 of the Service Tribunals Act, 1973, any party to a suit, appeal or application pending before any court and abated by operation of the Service Tribunals Act, could within ninety days of the establishment of the Tiibunal, prefer an appeal to it. Since no such suit, appeal or application of the appellant was pending before any court on the commencement of the 'said Ordinance, the question of its abatement and filing of appeal before this Tribunal under section 6 of the Service Tribunals Act, does not arise. The learned counsel thus utterly failed to make out a case for admission of the appeal which is dismissed in limint as incompetent. (TQM) Appeal dismissed.
PLJ 1985 Tr C PLJ 1985 Tr C. (Services) 130 (Federal Service Tribunal, Islamabad] Before : justice shah abdur rashid, chairman, muhammad irshad khan, S. A. sayood & maj. gen. ch. A. rahman khan HI (M) (RETD), members WALLAYAT HUSSA1N RAJAAppellant versus SECRETARY, Establishment Division & 198 OthersRespondents Appeal No. 98 (R) of 1983, decided on 1-7-1985. (1) Civil Servants Act, 1973 (LXXI of 1973)
S. 8 read with Office Memorandum No. 1/2/75-ARC dated 27-1-1975Para. 12Directly recruited officer Claim of s>emoiity to promoteesAppellant joining service in NPS 17 on 21-3-1977 Promotees of 197-Talso joining service is NPS 17 in same year (in Nov. 1977) on promotionOffice Memo, at relevant time providing that promotee officers of particular year as (a) class to be senior to directly recruited officers of that yearHeld : Appellant not to be placed senior to persons promoted in 19/7. [Pp. 133 & 134 ]A &C PLJ 1985 SC 175 ref. (il) Service Tribunals Act, 1973 (LXX of 1973)
S. 4-Service TribunalAppeal toLimitation Bar ofAppel lant's first representation against seniority list rejected on 17-10-1^2 Appeal to President gainst such order preferred on 14-11-1982 also remaining undecidedAppellant not coming to Tribunal within 120 days from 14-11-1982 and infact filing appeal on 4-1983 Held : No valid reasons for delay having been given, delay not to be condonedHeld farther : Appeal not filed within period of limitttoo to be liable to iimissal. [Pp. 134 & 135]£ (Hi). Serrice Tribunals Act, 1973 (LXX of 1973>- -S. 4 read with Civil Servants Act, 1973 (LXX of 1973)-S. 22 Service TribunalAppeal to Departmental representationFailure to make -Effect of- No departmental representation made against induction and regularisation of persons belonging to Armed Forces in Grade 18Held : Appellant not to be competent to challenge such induction before Service Tribunal. [P. 134]£> (iv) Civil Serfices
Seniority Claim of Competitive examination Year of Clearance of Relevancy of Appellant clearing Federal Public Service Commission competitive examination in 1975 Appointment, however, made in 1977-Held : Year of clearing examination being not relevant, appellant to count his seniority from commence ment of serviceHeld further : Appellant having been appointed in 1977 for in service training, seniority not to be claimed from any date earlier than 1977. [P. 133] B Appellant in person. Mr. Amir Akbar Khan, counsel for State. Syed Masood Ahmad, Advocate on behalf of Respondents. M/s. Sajjad Hussaip, Muhammad Ramzan, Muhammad Yunas, Ghiasuddin Ghouri and Sajjad Akhtar, Respondent in person. judgment Justice Shah Abdur Rashid, Chairman.The appellant was selected in the Central Superior Services Examination held by the Federal Public Service Commission in 1975. He was put on in-service training on 21-3-77 in NPS 17, and allocated to the Office Management Group in February, 1978. In the seniority list of Section Officers (NPS 17), he was shown at S. No. 203. In this appeal, he claimed seniority over the persons named at S. No. 10 to 67 and S. No. 105 to 200 in the 1981 seniority list of grade 17 Section Officers and also over S. No. 328 to 337 and 3oJ to 37^ and 380 to 403 of sub-list of grade 18 Section Officers. At the time of arguments, however, the appellant confined his claim for seniority over respondents 10 to 67 and 105 to 200 Section Officers of Grade 17 only, referred to above. 2. The Office Management Group was constituted under Office Memorandum No 1/2//5 ARC, dated the 27th Juauary, 1975 (hereinafter referred to as the aforesaid Memo;, before the appellant joined service. The initial formation Of the Group was made under Para 4 of the aforesaid Memo that listed five categories of persons who were to be inducted in that Group on regular basis. These categories are : (/) Section Officers who already stood encadred in the former CSSCadre through notifications issued from time to time. (ii) Section Officers who were eligible to be encadred, but notifications could not be issued before the abolition of the CSS Cadre. (///) Section Officers directly recruited by FPSC till the end of 1974. (iv) Ad hoc Section Officers who qualified in the Promotional Examina tions of 1967 and 1969 but, who could not be adjusted on regular basis due to non-availability of posts in the departmental quota. (v) Ad hoc Section Officers who appeared in the Promotional Examina tions of 1967 and 1969 and were cleared by revising the standard in consultation with the FPSC." 3. Para 6 of the aforesaid Memo, envisages absorption of still another category of ad hoc Section Officers. This para reads as follows : "Ad hoc Section Officers other than those mentioned at clauses (/v) and (v) of Para 4 above, are liable to be replaced by FPSC Section Officers. Such of them as are not replaced will be required to take Section Officer (Qualifying) Examination to be conducted by the FPSC. Not more than two chances to clear the examination will be given after taking into account the marks obtained by them in the Qualifying Examination, service record and the vacancies available at the time. Such of them as are cleared finally will be placed on regular footing. Those who do not clear it will be reverted." 4. The persons at S. No. 10 to 67 and 105 to 200 of the seniority list are either those ad hoc Section Officers who come under Para 6 of the aforesaid Memo, as they passed the Qualifying Examination after 27-1-75 and were brought on regular footing or persons promoted from Ministerial services and appointed as Section Officers in the Office Mangement Group in grade 17 in November-December, 1977. 5. The appellant contended that those persons who were serving as Section Officers on ad hoc basis prior to the formation of Office Mana gement Group were governed by the Central Secretariat Service (Class I) Rules 1965, and, as such, under rule 6, they could not hold more than 20 per cent of the vacancies of Section Officers, the remaining 80 per cent being reserved for direct recruits. The appellant's c; se is that had he been considered for ^Q per cent quota, he would have ranked senior to the persons of that category. In our opinion, Rules of 1965 have no relevance what soever for the purpose of determining the seniority of the appellant, inasmuch as. the Office Management Group was formed by a specific order dated 27-1- 75 contained in the aforesaid Memo and the method of initial formation was given therein. The persons who were ad hoc Section Officers prior to the formation of Office Management Group, were to be encadred in the Group on its initial formation, as provided for in para 4 and para 6 of the aforesaid Memo. Para 4 relates to those ad hoc Section Officers who had already cleared the Promotional Examination, while para 6 relates to those who bad not by that time cleared such examination. They were allowed two chances s to clear the examination and it was provided that if they succeeded, they shall be placed on regular footing in the Group. In these circumstances, the question of application of quota to direct and promoted officers on the initial formation of the Group does not arise. 6. The rule for fixation of seniority of the persons who had been inducted in the Office Management Group on the basis of the aforesaid Memo is ontained in para 12 thereof. At the time when the appellant joined the service, that Para read as follows : "12. Seniority : (a) Separate Division-wise seniority lists would be maintained for all posts in Grade 1 to 16 as hitherto on the basis of continuous regular officiation in the grade. ithan 1977. The promotees of 1977 also joined service in NPS 17 in the Clsame year on promotion. They shall, therefore, as a class, rank senior to 'the appellant, as provided for in Para 12 of the aforesaid Memo. 9. The appellant's stand that these persons were in excess of their quota also does not appear to be correct. The departmental represen tative and the learned counsel for State have explained to our satisfaction from the record that after the initial formation of the Office Management Group, under Para 4 and 6 of the aforesaid Memo, there were 344 vacancies leftover for being filled. In accordance with para 7 of the aforesaid Memo, 2/3rd vacancies were to be given to the direct recruits, while l/3rd to the promotees. Applying this provision, the department promoted 114 persons from the Ministerial service and appointed 52 persons including the appellant by direct rscruitmant. Sines there were 114 vacancies available for the promotee officers, the appointments were made accordingly. Only 52 direct recruits were available in that year and they too were encadred accordingly. The appellant has not been able to show that the promotions were made in excess of the quota^ while filling the left-over 344 vacancies. No doubt, the direct recruits were not appointed for 2/3rd vacancies, , nevertheless, as explained by the learned counsel for State, all the remain ing vacancies are to be filled on regular basis by direct recruitment unless the law is changed. It was also urged by the appellant that in Para 6 of the aforesaid Memo, the words "vacancies available at that time" excludes the chances of promotion in excess of l/3rd of the number of persons recruited in a year. We do not think, such an interpretation can be placed on the language of Para 6. The above-mentioned words refer to total vacancies and not the vacancies of either class of a particular year. 10. The appellant also contended that the provisions made in the aforesaid Memo that the promoiee officers, as a class, shall stand senior to the direct recruits is not consistent with section 8 of the Civil Servants Act (LXXI of 1973), and as such, has to be ignored. In this respect, he relied on the decision of a ivisional Bench of this Tribunal made in Appeal No. 40 (R) of 1981 Fazat-i-Qadir v. Secretary, Establishment Division and 251 Others. Since there was a difference of opinion in the Tribunal on the specific issue, the present case was heard by the Full Bench. The law on the point is now settled in the case of Federation of Pakistan v. Azam Ali and others [PLJ 1985 SO 175), wherein the Supreme Court has held that the General Principles of Seniority which provide for placing the promotee officers ot a year over the direct recruits of that year is not inconsistent with the provisions of section 8 (4) of the Civil Servants Act (LXXI of 19/3)^11 is pertinent to note that the Supreme Court, wnile granting leave to appeal in the case of Fazal-i-vjadir, had suspended the operation of the Tribunal's order. 11. The appellant also contended that ten persons belonging to the Armed Forces were directly inducted in Grade 18, thus further relegating the seniority of the appellant. It was urged that the direct induction in Grade 18 is not envisaged by the aforesaid Memo and, therefore, those persons cannot be placed senior in the seniority list. Without going into the merits of this assertion, we are of the view that the appellant cannot challenge their induction in Grade 18 before us, as no departmental representation was made when the induction of these officers and their regularisation was ordered. 12. Apart from the merits of the case, the appeal is liable to dismissal, as it was not filed within the period of limitation provided for in this respect. The appellant made first representation against the seniority list on 19-7-82, which was rejected on 17-10-198?. Against the rejection orderappeal to the President was preferred on 14-11-82, but that remained un decided. According to law applicable in this case, the appellant should have come to the Tribunal within 120 days from 14 11-82. The last date for filing the appeal before the Tribunal was thus 14-3- 983. The precent appeal having been filed on 9-4-83 is out of time and there being no valid reasons for condonation of delay, the delay cannot be condoned. 13. In view of the above legal and factual position, we find no substance in this appeal and dismiss the same accordingly. Parties to bear their own costs, and be informed accordingly. (TQM) Appeal dismissed.
PLJ 1985 Tr C (Labour) 135 PLJ 1985 Tr C (Labour) 135 [National Industrial Relations Commission, Islamabad ] Before : justice dr. ibrahim mabmood, chairman & mahmood akhtar, member E.O.B.I. EMPLOYEES FEDERATION Appellants versus EMPLOYEES OLD-AGE BENEFITS INSTITUTION, Karachi Respondent Case No. 12 (3) of 1985, decided on 3-7- U85. (i) Industrial Relations Ordinance, 1969 (XXUI of 19o9) -- S. 10 Trade Union Cancellation of registration of EinMoysr Locus standi to apply for Held : Employer to have no locu tandi to challenge legality of registration of trade union in his establishment Application for cancellation of registration filed by mployer in case, however, treated as information brought before Registrar Held : Registrar being competent to suo motu file omplaint for cancellation of registration on basis of such information, order passed (in that behalf) not to be vitiated. [P. 137J4 (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969) S. l(3)(c) [as added by Industrial Relations (Amendment) Ordinance, 1979 (XXI of 1979) S. 2]J-Employees Old Age Benefits nstitution Employees of Status of Ordinance Applicability of Institu tion established to perform constitutional duty of Govt. s indepen dent statutory corporation with independent Board of Manage ment "Held : Institution not to be department of state eld farther : Employees of such Institution also not to be Gove rnment or civil servants. (Pp. 138 & (iii) Industrial Relations Ordinance, 1969 (XXIII of 1969) -- S. 2 (xiv)- Industry -Definition of Employees Old Age Benefits Institution Status ofInstitution created by Special Act providing valuable monetary benefits and material services to insured pensions and widows in its firm old age persons, invalidity pension, widows pensions, old-age grants and other payments Such Institution also maintaning cadre of employees including 200 workers Qualificationi (iv) Words and Phrases "Service"Meaning of. [P. 141]Z> for recruitment and method of appointment, seniority and terms and conditions of service also determined and laid down Held : Institution to be "Industry" (falling within expression "service") nothing meaning of S. 2 (xiv) of Ordinance. \ Pp. 140 & 142JC Shorter Oxford English Dictionary (p. 1590) ref . Raja Abdul Rashid, Advocate for Appellant. Mr. Mahmood A. Ghani, Advocate for Respondent. order This is an appeal against the oder dated 13-12-1984 passed by the Senior Member of the Commission, in his capacity as Registrar of Trade Unions, directing that a complaint be filed before a Bench for cancellation of the registration of the Appellant, E. O. B. I. Employees Federation, under section 10(1)(/) of the Industrial Relations Ordinance, 1969 on the ground that the said Federation has been registered in contravention of the said Ordinance, 2. Briefly, the facts of the case are that the Appellant E.O.B.I. Employees Federation consists of two provincially registered trade unions which are.affiliated to it, viz. E. O. B I. Employees Union Sind, claiming to represent some 97 employees working at the Head office, at Karachi of the E. O. B. I. Institution and E. O. B. I. Employees Union Punjab, claiming to represent some 103 employees working in the Punjab, Zonal Office of the Institution. The Appellant Federation was duly registered with the N. I. R. C. as a federation of trade unions at the national level under registration No. 1/1979 and is also certified as C. B. A. 3. The Respondent is Chairman of the Employees Oldage Benefits Institution. The Institution has been established under the Employees Old-age Benefiets Act, 1976 as a Statutory Corporation with the object of providing and securing to eligible insured persons employed in an industry or establishment, certaiu benefits such as, old age pensions, invalidity pensions, widows pension, old-age grants and other benefits, out of contributions payable to the Institution by every employer of an industry or establishment wherein 10 or more persons are employed, at the rate of 5% of the wages of every person in his insurable employment every month, in the prescribed manner. The Institution is managed by a Board of Trustees consisted of members appointed by the Federal Government under section 7 of the said Act. 4. On 30-8-1984, the Chairman, E. 9. B. I. Institution moved the Registrar of Trade Unions, N. I. R. C. pointing out that the Appellant Federation was registered in contravention of the provisions of the Industrial Relations Ordinance, 1969 (hereinafter referred to as 'the said Ordinance') on the ground that employees of the E. O. B. I. Institution This decision has been announced under sub-section (4) of Section 22-B of 1. R. O., 1969 in the absence of learned Member Raja Iftikharullah wb,o also hiard the appeal but whose tenure has since expired, employer and other regulations. Secondly, the institution is organised by co-operation between it as employer and the employees. The Institution maintains a cadre of employees of whom about 200 are workers. Their qualifications for recruitment and method of appointment, seniority and terms and conditions of service are determined, organised and laid down A substantial quantum of work of the Institution is the maintenance and scrutiny of records and returns, issue of notices, correspondence, registraatioii of establishments, preparation and issue of old-age benefits cards to eligible workmen which is more or less work of a clerical nature, involving the co-operation between the workers and the Institution. Thirdly, the result of the said activity of the Institution js the provision of valuable monetary benefits to insured persons and widows, in the form of old age pensions, invalidity pensions, widows pensions, old-age grants and other! payments and are clearly material services "Service" has been defined!, in the 'Shorter Oxford English Dictionary page 1590'as including "the! action of serving, helping or benefitting, tending to the welfare on advantage of another". (TQM) APPEAL DISSMISSED
PLJ 1985 Tr PLJ 1985 Tr. C. (Services) 141 [Federal Service Tribunal, Islamabad ] Before : justice shah abour rashio, chairman & S. A. sayood, member AMIR SULAIMAN Appellant versus MANAGER, MILITARY FARM, Bannu and 2 Others Respondents Appeal No. 81-R of 1985, decided on f -7-1985. (0 Serrice Tribunals Act, 197 (LXX of 1973) -- S 4 Service Tribunal Appeal to~ Limitation Bar of Order of enhancing penalty (of censure and stoppage of increment to dis missal from service) allegedly passed without notice to appellant Such order, however, takihg effect and appellant deprived of obtain ing his salary and allowances Held : Act of physical removal from performance of duties having given immediate cause of action, appellant to be required to come to Tribunal within statutory period. [P. 142]A (ii) Service Tribunals Act, 1973 (LXX of 1973) S. 4 read with Constitution of Pakistan. 1973, Art. 212 & Limita tion Act, 1908 (IX of 1908) Ss, 5 & 14 Service Tribunal Appeal to Delay in filing of ondonation of Proceeding in court with out jurisdiction Exclusion of Negligence Effect of Jurisdiction of civil court though excluded in 1973 appellant iling civil suit in 1985 (allegedly on advice of counsel) Held : No indulgence to be given for gross inexcuiable negligence of counsel Plaint in case returned to appellant on 14-2-1985 while copy of order made able on 19-2-1S85No reason, however, given for filing appeal before Tribunal on 21-3-985Held : Appeal being hopelessly timebarred, same to be dismissed in limine. [P. 143JB, C & D PLJ 1974 SC 5 ; PLJ 198J SC 563 ; 1985 SCMR 1003 ; PLJ 1977 SC 340 ; 1984 SCMR 890 & 1985 SCMR 333 ref. AIR 1937 PC 276 held not approved by Supreme Court. Rija Muhammad Asghar Khan, Advocate for Appellant. Date of hearing : 4-7-1985. order Justice Shah Abdur Hashid, Chairman.The appellant, Amir Sulaiman, was charge sheeted on 5-9-82. As a result of disciplinary proceedings, he was awarded the penalty of censure and stoppage of increment. There after, however, by order dated 28-11-83, he was removed ftom service by enhancing the punishment and giving him 14 days' notice He filed a departmental appeal on 5-12-83, which was dismissed on 21-2-84. present appeal has been filed before n» QiL i jl^ ! f+n»~ l ~ by morethaiyiufej|p£|^Bp0H0MMl^Rr^rpinicauon for condona- 2. The learned counsel for the appellant contends that the order of enhancing the penalty having been pined without notice to the appellant, the same was ab initio void, and as such the period of limitation does not start running against the appellant. In this respect reliance was placed on the decisions of some domestic tribunals, but the law is now settled by the Supreme Court in the case of Sharif Ahmad Hishmi v. Chairman, District Screening Committee (1980 SCMR 711)., wherein it was held that the limitation cannot be circumcented on the ground that the impugned order was void. The Supreme Court in this very case has observed that assumption that courts always struck down a void order regardless of consequences of decision is t-tally a fallacy, An order described as void may be illegal, but it would not alter the fact that it was passed and consequences were created. In the present case also, even if the order is held to be void, it has taken effect and the appellant had to leave service where y he was deprived of obtaining his salary and allow ances. If not the void order, yet the act of his physical removal from performance of duties gave him immediate cause of action and he should have come to the Tribunal within the statutory period. 3. The learned counsel then argued tnat the appellant was wrongly advised by his counsel to go to the civil court to seek redress and that he actually filed a civil suit before the Civil Judge on 15-1-85, but the said Judge returned the plaint on 14 2-85 tor want of jurisdiction. It is contended that the appellant received the copy of the order of civil court on 19-/-85 and filed the appeal before us on 21-3-85. It is argued that wrong advice of the counsel is a good ground for condoning the delay. Reliance in the first instance was placed on the case of Nazar Muhammad and another v. Mst. Shahzada Begum and another [PLJ 1974 SC 3], wberem reliance was placed on the case of Kumar Rajendra Bahadur Singh v. Rai Rajeshwar Bali & others (AIR 1937 PC 276), and it was held that a mistaken advice by counsel may be considered to b« a sufficient ground for does not assist him. It rather supportive -;.. upon by the Supreme Court in the case of Mita ijm had observed that mistake in approaching a wrong forum due to negligence and carelessness of counsel is not a good reason for condoning the dela", where it is stablished that the error was such which a reasongence for which no indulgence Apart from what we have said above, the appellant has not beeni able to explain the reason for filing the appeal on 21 3-85, when the plaintL wa» returned to him on 14-2-85, and copy of the order was available to html 1 ' on 19-2-85. 6. In view of what we have stated above, we hold that the appeal isi o hopelessly barred by time. It is dismissed as such in limine. Parties tof be nformed. (TQM) Petition dismissed.
PLJ 1985 Tr PLJ 1985 Tr. c7(Election) 143 [Electioo Tribunal, Baluchistan , Qnetta] Before : justice saleim'akhtar ALI AHMED KHAN-Petitioner versus MUHAMM \D QASIM KHAN and OthersRespondents Petition No. 6 of 1985, decided on 14-5-1985. (Iv) Representation of People Act, 1976 (LXXXV of 1976) ~? 6 o 2 ~;, Ele r Ct , i ,? n Tribuna l-Procedure before-Civil Procedure Code, 1908 (V of 1908)-Applicability of-Held : Equitable principles of CPC not contrary to prescribed procedure and Act to be occasionally pressed into service in interest of justice. [P. 14914 (v) Representation of People Act, l!»76(LXXXV of 1976) - S. 62 -Election Tribunal Procedure before Election petition-Amendment in Patties Addition or deletion of Held : Election Tribunal being competent to allow amendment of pleadings (subject to limitations provided under Act), parties to be competently joined or deleted from petition in proper cases. [P. 149]fi (vi) Representation of People Act, 1976 (LXXXV of 1976) -- S. 63 Election Petition Dismissal of during trial Legislature requiting strict compliance of requirements laid down by Act _ Held : Non-compliance, unless remedied (by amendment in petition) to result in dismissal of petition. [P. 149]C (vii) Rules -- Construction of Held : Liberal, construction of procedural rules not to be permitted to violate language of statute and intention of legislature. [P. 149]£> Mr Muhammad Aslam Chisti, Advocate for Petitioner. Mr. Yahya Bakhtiar, Advocate for Respondent No. 1. judgment The petitioner has filed this petition challenging the election of the respondent No. 1 who was declared elected from the National Assembly Constituency N. A. 198-PJshin in the election held on 25th February, 1985. The admitted facts are that in this election there were 16 candidates including the petitioner. The petitioner filed this petition and in the title 14 contesting candidates were joined as repondents No. 1 to 14. Thereafter without mentioning respondent No. 15, Returning Officer has been made as respondent No. 16. The serial No. 15 and the name of one contesting candidate viz Hazrat Ali Karbala is completely missing. The Election Commission issued notice to such respondents whose names were mentioned in the title of the petition. When the matter was fixed before me the respondent No. 1 filed his written statement raising objection that Hazrat Ali Karbala who has admittedly been a contesting condidate has not been joined as a party. It was pleaded that in view of non-compliance of section 55 of the Representation of the People Act 1976 (hereinafter referr ed as the Act) the petition should be dismissed under section 63 of the Act, On this legal point, a preliminary issue was framed as follows: of 'Whether the petition is liable to be dismissed as Hazrat Ali Karbala has not been joined in the petition as a respondent ?' Mr. Mohammad Aslam Chishti the learned counsel for the petitioner has filed an application praying that the (1) affidavit of Syed Hazrat Ali Karbala which is annexed with the application, (2) Affidavit of Abdus Salara the Attorney of the petitioner, and (3) the affidavit of Mrs. Asbraf Abbas Advocate should be brought on record for the purposes of argu ments on this preliminary issue. Mr. Yahya Bakhtiar Advocate for the respondent No. 1 has no objection for accepting these affidavits on record The petitioner has also filed an application for adding the name of Hazrat Ali Karbala as respondent No. 15. By filing these affidavits the petitioner wants to establish that in fact Hazrat Ali Karbala was intended to be joined as respondent No. 15 and further that reference has been made to him by implication in the petition itself, but due to typographical error his name was not typed in the petition at serial No. 15 and therefore, there being a substantial compliance of the provision of law, the petition should not be dismissed. The affidavit of Hazrat Alj Karbala has been filed to show that notice of filing of petition and copy of the petition was despatched to him by registered post A/D and was duly delivered to him. Now in the back ground of these facts it is to be considered whether the provisions of Section 55 of the Act have biea complied with and Section 63 of the Act is not attracted. In this regard reference can be made to certain provisions of the Act. Sections 54, 62 and 63 read as follows : 54. Parties to the Petition.The petitioner shall join as respondents to bis election petition (a) all contesting candidates ; and (b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by register ed post on each such respondent a copy of the petition. Explanation. In this section and in the following povisions of this Chapter, 'corrupt or illegal practice' means a 'corrupt practice' or an 'ijjega! practice' within the meaning of Chapter 62. Procednre before Tribunal(1) Subject to the Provisions of this Act and the rules, every election petition shall be tried in accor dance with the procedure laid own by the Election Commission. (?) Subject to the provisions of this Act, the Evidence Act, 1872 (I of 1872), shall apply for the trials of an election petition. The Tribunal may, at any time, upon such terms and on payment of such fee as it may direct, allow a petition to be amended in such manner as may, in its opinion, e necessary for ensuring a fair and effective trial and for determining the teal question at issue, so however that no ne< ground of challenge to the election is permitted to be raised. (3) At any time during the trial of an election petition, the Tribunal may call upon the petitioner to deposit such further sum by away of security, in addition to the sum deposited under section 52, as it may think fit. 63. Dismissal of petition daring trial.The Tribunal shall dismiss an election petition, if (a) the provisions of section 54 or section 55 have not been complied with ; or (6) if the petitioner fails to make the further deposit required under sub-section (4) of section 62. According to Mr. Yahya Bakhtiar the learned counsel for the respon dent No. 1 the provisions referred above are mandatory in nature which require a particular form, and manner in which, the petition should be filed and consequences for its non-compliance have also been provided therefore the Tribunal has no option t»ut to dismiss the petition. The learned counsel has emphasised that section 63 requiries that the Tribunal shall dismiss the petition. Mr Cbishti the learned counsel has referred to the various paragraphs of the petition with a view to show that at all material times the petitioner had always intended and in fact made teferenee to Hazrat Mi Karbala although bis name has not been typed. He particularly pointed out that in paragraph 2 of the petition it has been stated that respondents No. 1 to 15 were contesting the election. Reference has also been made to annexure 'A to the petition, which gives the list of candidates, and their, symbols. The Uarned counsel contends that as substantial compliance of the provisions of law quoted above has been made, it cannot be enforced with such rigours which may cause injustice. In this regard the learned counsel has referred to the following passage from Bindras, Interpret atioa of Statute 7th Edition 1984 at page 685. 'Generally a mandatory provision is to be construed strictly while a directory provision is to be construed liberally. There have been many instances where the court has held that a substantial com pliance with the statute, or with the Rules framed thereunder is enough even it' there be no literal compliance. The non-com pliance with the provision of statute or Constitution will not neces sarily render a proceeding invalid if by considering its nature, -its design and the consequences which folio from its non-observance one is not led to the conclusion that the Legislature or the Constitu tion makers intended that there should be no departure from the strict word used.' The learned counsel also referred to Maxwell on the Interpretation of Statutes 12th Edition, Chapter V page 106 and has relied on the following passage : 'In several old cases a staute which made an Act criminal in unqualified terms was understood as not applying where the act done was excusable or justifiable on grounds generally recognised by law : a literal interpretation would have given rise to con sequences which the legislature could not possibly ha/e intended. Thus a statute which imposed 'three months' imprisonment and the forfeiture of wages on a servant who 'absented himself from his service before his term of service was completed was understood as confined 16 cases where there was no lawful excuse for the absence. Reference has also been made to Crawford's Statutory Construction page 550. Note 274 which runs as follows. 'In order to maintain a practical and human system of statu tory law, occasions will arise where the meeting of the prohibitory or mandatory requirements of the law may be excused or overlooked. Nevertheless, it will be in only extreme cases where compliance with the law may- be excused. Many excuses have been set up by way of defence without success. According to Bindra also before holding that non-compliance of a provision of statute will render the proceeding invalid one has first to ascertain the intention of the legislature whether any departure is permissible. The principle evolved by Crawford is an exception to the general rule and particularly refers to penal statutes. The observation of Maxwell referred by the learned counsel for the petitioner is merely an illustration of the principle enunciated in its preceding paragraph which reads as follows : 'Sometimes indeed, the meaning of words is so plain that effect must be given to them regardless of the consequences, but more often as the cases discussedin the following pages show a con struction is arrived at with reference to the consequences which roust follow from it. "It is always, proper' Lord Reid has said, "to construe an ambiguous word or phrase in light of the mischief which the provision is obviously designed to prevent, and in light of the reasonableness of the consequences which follow from giving it a particular construction. "If the language," he said elsewhere, "is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result." In the words of Romer L.J, 'the court ......................... when faced with two possible constructions of legislative language, is entitled to look to the results of adopting each of the alternatives respectively in its quest for the true intention of Parliament." those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in mereiy
affir mative language." It is therefore necessary to first ascertain the intention of the legisla ture. A perusal of the provision of the Act makes it clear that a pro cedure has been laid down regulating the filing and trial of the election petitions. The legislature has taken care to even specify who should be joined as parties and what the contents of the petition should be. It also provides that allegations and averments challenging the election should be specific and by way of amendment no additional grounds should be permitted to be added afterwards. It is also provided that all the contest- Ing candidates and other candidates against whom any allegation of corrupt or illegal practice is made should be joined as a party. The conse quences for non-compliance have also been mentioned in section 63 of the Act. It is pertinent to note that section 62 which provided that procedure for trial of the election petition shall be as nearly as may be in accordance with the procedure of trial of 'suit under the Code of Civil Procedure has been deleted and instead the procedure has been'laid down by the Election Commission. Therefore, the statutory provision for application of the provision of Code of Civil Procedure has been excluded and in its place a new procedure has been laid down by the Election Commission, which has been notified in the Gazette of 16th March 198S. Now, essentially the procedure is to be governed as laid down by Section 62 sub-clause (1) but occasions may arise, when in the interest of justice equitable principle of C. P. C. not contrary to the prescribed procedure and the Act may bs pressed in service. Section 62 sub section . (3) of the Act empowers the Tribunal to allow such amendment in a petition which may be necessary for ensuring a fair trial and foi determining the real question-at issue. It therefore follows that in certain circumstances the Tribunal can allow the petition to be amended In the absence of applicability of Code of Civil Procedure, in my view the Tribunal, subject to the limitations provided under the Act can allow the amendment of pleading and in proper cases even allow the parties to be joined and deleted from the petition. From scrutiny of the provisions of the Act it is plain that the legislatu-e requires strict compliance of the requirements laid down by the Act. Its nun-compliance will follow dis missal unless it can be remedied by amendment in the petition which the Tribunal is permitted to allew under law. I had the occasion to consider Rules 65, 66, 67 and 68 of the Sind Local Council Election Rules in' Mohammad Hanif vs. Gnu lam Hyder Sb$.h P.L.D. 1982 Karachi 957 which are similar to sections 54, 56 and 62 of the Act and observed that those Rules being procedural should be liberally construed. But such liberal construction cannot be permitted to violate the language of statute and intention of the legislature. I have already observed above the extent upto which the mandatory provisions of section 54 and 63 can be relaxed. If a very technical and strict view is taken and petition is dismissed on such non-compliance which can be remedied by granting amendment then it will be violative of the intention of legislature as it will make the provision authorising the Tribunal to grant amendment in the petition redundant and nullify section 62 (3) of the Act. It is now to be considered whether at this stage Hazrat Aii Karbala cant be joined as a respondent. The prayer for joining him as a party has been! made after the expiry of the period of limitation. But for this reason io} the facts and circumstances of the case, in exercise of power to grant amendment it may have been possible to grant the request. But surely not after the expiry of the period of limitation. If such application would have been made before the expiry of the limitation it would have been just and proper to allow the contesting candidate to be joined because f taking a very strict view the petition would have been dismissed perhaps the petitioner would have had sufficient time to file a fresh petition joining all the contesting candidates. In these circumstances the dismissal would iave been an exercise in futility. It is well settled that no one can be joined as a party to the proceedings after the expiry of the period of limitation. Even the affidavit filed by Hazrat AH Karbala does not state that he is prepared to be joined as a party I therefore see no just reasont to allow Hazrat Ali Karbala to be joined as a respondent in this petition. As the petitioner's application for adding Hazrat Ali Karbala has not been granted I will consider the contention that as substantial compliance has been made for all practical purpose Hazrat Ali Karbala is be treated as respondent No. 15. The fact remains that his name does not appear anywhere either in the title or in any part of the petition. Mere reference to all the contesting candidate in general terms does not make any one as respondent. If a person has been joined as a party he should find place in the title with name, address and other required particulars. The law requires a contesting cadidate to be. joined as a party and unless it is specifically done in clear terms it can not amount to due compliance with the provision of law. As Section 54 is mandatory in terms it should be complied with and consequences for non-compliance will attract Secion 63 (a) provided the defect can not be remedied by amendment under section 62 (3) of the Act. In these circumstances even if there is ubstantial compliance it will not amount to due compliance of mandatory provision of law. The petition was filed before the Election Commission who had issued notice to the respondents but no notice was issued to Hazrat Ali Karbala. No person can be treated to have been joined as respondent y reference or by implication. In these circumstances 1 do not find that the provision of section 54 of the Act has been complied with. Mr. Chishti has referred to P. L. D. 1975 Lah. 1016 where the legal representative of a deceased respondent were allowed to be joined after about one year. In my view the observations relates to interpretation of Order 1 Rule 10 (2) C. P. C. and Section 22 of the Limitation Act and does not apply to a case where a necessary party has been joined in the proceeding at all. Further in that case the second appeal was filed against the deceased respondent due to the mistake of the first appellate court who inspite of granting application under Order 22 Rule 4 C. P. C. did not bring the legal heirs on record and allowed the deceased's name to remain in the title of the decree and judgment. In view of the above discussion my finding is that Hazrat Ali Karbala Jl| who was a contesting candidate has not been joined as a party in the ^"^- petition. Therefore in view of Section 63 of the Act the petition is dismis sed with cost of Rs. 500 to be paid to the respondent No. 1 by the peti tioner out of the security deposited by him. The petition is dismissed. (TQM) Order accordingly.
PLJ 1985 Tr PLJ 1985 Tr. C. (Labour) 168 [Punjab Labour Appellate Tribunal, Lahore ] Before : muhammad abdul ghafqqr khan lodhi BABU MASIH-Appellant versus PAKISTAN TELEVISION CORPORATION through its Chairman, Federal PTV Complex, Islamabad and 2 OthersRespondents Appeal No. LHR-75/85 Punjab , decided on 8-7-1985. (i) Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (W. P. Ord. VI of 1968)-
S O. 12 (3) & S 2 (i) & (?) read with Industrial Relation Ordi nance, 1969 (XXIII of 1969) S. 25A Workman employed in Television Corporation ismissal from service ofGrievance of Redress ofSweeoer employed in Pakistan Television Corporation dismissed from serviceHeld : Such sweeper doing anual work being workmen [within meaning of definition given in S. 2 (/) of Standing Orders Ordinance] benefit of such Ordinance, to be com petently taken by im abour court, however, returning grievance petition on ground of same being not competent Held : Service having been terminated in case, application under S: 2SA f Indus trial Relations Ordinance, 1969 to be competent by virtue of S. O. 12 (3) of Standing Orders Ordinance, 1968. [Pp. 168 & 169]/4 (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 25ASee : Industrial & Commercial Employment, (Standing Orders) Ordinance, 1968 (W. P. Ord. VI of 1968)S. O. 12 (3) & & 2 (I) & te). [Pp. 168 & 169]A Mr, H R. Haider, Advocate for Appellant. Syed Afohstn Zaidi, Advocate for Respondent, Date of hearing : 2-7-1985. judomint The decision dated 23-12-1984 recorded by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore has been challenged whereby the grievance petition of the appellant was returned on the ground that it did not lie. 2. The appellant was Jamadar in grade 'A' in Pakistan Television Corporation. He was employed on 1-12-1979. He was dismissed on 26-11-1943. His grievance petition was disallowed on the ground that Industrial Relations Ordinance, 1969 was not applicable to the reepondent The learned lower court has not held that Standing Orders Ordinance, is also not applicable. By virtue of Order 12 (3) a person whose service has been terminated or who has been ismissed can bring an application under Section 25A of the Industrial Relations Ordinance, to the Labour Court. This was not the case of the respondent that the appellant is not covered by thg definition of workman given under Section 2 (i) of Standing Orders Ordinance, 1968. The appellant being sweeper has to do mannual work so he is covered by the definition (ii) Service Tribunals Act, 1973 (LXX of 1973)- «S. 4Service TribunalJurisdiction ofHeld: Service Tribunal to have jurisdiction in respect of civil servants whether ad-hoe, temporary or regular. [P. 173]4 (ill) Serrice Tribunals Act, 1973 (LXX of 1973)- S. 4-See: Population Welfare Planning Programme (Appoint mem & Termination of Seivice) Ordinance, 1981 (XIV of 1981) S. 4. [P. 173]5&C Mr. F. E. Siddiqui, Advocate for Appellant. Hafiz Tariq Naseem, Counsel for State. Date of hearing : 7-2-1985. order Justice (Retd ) Shah Abdur Rashid, Chairman.The Government, by Office Memorandum No F. 104/6o/~6-Mm dated the 30tn December, 1976, issued by the abinet ivision took the following two decisions with respect to the Family Planning Programme (i) to federalise the Population Planning Programme in Pakistan and its direct administration by the Federal Government; and (/;) to governmentalise the services of the Population Planning personnel. In the aforesaid Memorandum, it was further directed that the control of the Population Planning programme including the personnel thereof stood transferred from respective Provincial Governments to the Population Planning Division. The Population Planning Council of Pakistan and the Population Planning Boards were abolished. Subsequently, the Population Planning Council was revived on 2--9-19 78. When the ecision to governmentalise the services of the Popula tion Planning personnel had been taken, all the employees were offered posts under the Federal Government by etter No. F. 26-3/77 Admn. II, dated the 2nd July, 1977. It is not denied that all the employees accepted the offer and so did the present appellant. 2. The appe'lant was last serving as Senior Population Planning Officer, when on 4-11-80 he was served with a charge sheet, and as a result of an inquiry, was dismissed from service by order dated 23-11 81 His review petition was also rejected and be has filed the present appeal before us from the order of his dismissal. 3. This Bench was constituted to consider the objection raised on behalf of the respondents that the-appellant having not been cleared by the Federal Public Service Commission, in terms of section 4 of the Population Welfare Planning Programrns lAppointrasnt and Terminal! vn of Sarvice) Ordinance, 1981 (XIV of.1981), was not a civil servant when the charge sheet was served on him on 4-11-8 , and was also not cleared for appoint ment, and as such was not a 'civil servant on 23-11-81 wh:n the orders of his dismissal were passed. Accordingly, it was said, the Tribunal has no jurisdiction to entertain this appeal. 4. The stand taken; by the learned counsel for respondents is that nly those employees of the defunct Population Planning Council and tht Population Planning Boards became civil servant under the Civil Servant! ^ Act (tXXI of 1973) who were regulary re-appointed under the 1981 ' Ordinance after having been cleared by the Federal Public Service Commission. 6. The precise question was considered by us in the case of Riaz Ahmad Baig v Secretary, Population Planning Division [PLJ .9e3 Tr C. (Services) frft], wherein we had held that the employees of the Population Planning Council and tfee Boards became civil servants when they were offered the posts under the Population Plani ing Division and they accepted tbe same and that the Ordinance only laid down tbe condition to make them regular employees 7. The learned counsel for respondents has, however, contended that the aforesaid decision of the Service Tribunal was taken in appeal to the Supreme Court, which set aside the finding of the Tribunal in Civil Petition No. 121-R of 193, converted into C'vil Appeal No. 140/1984. The learned counsel for the appellant, however, contends that the decision of the Supreme Court did not touch the specific objection of the respondent Government that the Service Tribunal had no jurisdiction to entertain the appeal, and that, in fact, tbe exercise of jurisdiction by the Tribunal was impiiedly upheld In the present case, therefore, we are only to interpret the judgment of the Supreme Court in the aforesaid Civil Appeal No. 140/1984, decided on 29th PebruaVy, 1984 8. The learned counsel for the appellant has referred to para, 7 of the judgment of the Supreme Court, wnere, inter alia, the stand of the Federation that the Tribunal had no jurisdiction to entertain the appeal was narrated He then drew our attention tc para IS of the judgme t, in which relerence was made to the status of the ex-employees of the Population Planning Council and the Boards. This para, reads as follow: "The admitted position is that the ex-employees had been work ing under the Population Planning Programme and were being paid from tbe Fund of the Council or the Provincial Boards until 30-12-1976 when the Government decided to federalise the Pro gramme and to govern mentalise the services of its personnel. The decision was, however, in the nature of a policy and had yet to be' implemented by issue of formal letters of appoint ment. In the meantime, all that was done by the letter of 30-12-1976 was to transfer the administrative control of the Population Planning Programme including its personnel to the Population Planning Division. No formal letter of appoint ment was issued until 2-7-1977 and although in the meantime the Council and the Boards were abolished, the employees continued to be paid from the Fund On 2-7-1977, the employees were off red appointment under the Population Planning Division retrospectively from 30-4-1977. This offer was subject to their acceptance of the terms and conditions set forth in the letter of offer with the stipulation that if they failed to communicate their acceptance within seven days, they would be presumed not to accept the offer. It is no body's case that the ex-employees before us did not accept the offer. Their appointment, therefore, under the Population Planning Division was upon their express accep tance of the terms and conditions mentioned in that letter. Theappointment so made was on a temporary basil and what » important "subject to such changes as may become necessary and are effected as a result of the new structure and organisation which the Government may sanction for the Population Planning Programme." What would be the structure and organisation for the Population Planning Programme was for the Government to decide. There was no commitment in the letter of appointment dated ^-7-1977 that the employees would become, by the acceptance of the letter itself civil servants. The fact that the procedure relating to Government servants was made applicable to the employees by the office memorandum aated 30-12-1976 or that the employees were made subject to rules and regulations applicable to temporary Government employees by the letter dated 2-7-1977, would not per se make them civil servants. The Government, therefore, was competent to provide for such structure and organisation as was stipulated in the letter and the appointment of the employees would be subject to such changes as may become necessary or may result from the same. The pre-amble of the Ordinance clearly shows that it had been framed to provide the structure and organisation stipulated in the letter of appointment. It is, therefore, not open to the employees to argue that while they had accepted the letter of appointment dated 2-7-1977, they would not be governed by the Ordinance. Their contention in that regard is, therefore, totally untenable and is rejected." Lastly, reliance was placed on the observation of the Supreme 9. Court in the first part of para 17. It is reproduced as under "The case of the employees were to be referred to the Commission under sections 3 and 4 formally appointing them under the Ordinance and only after they had been so appointed that they would acquire the status of civil servant within the meaning of Civil Servants Act, 1973. The argument advanced on behalf of the ex-employees that they had already become civil servants and their case was not referable to the Commission, has, therefore, no weight." 10. No doubt, in the aforesaid paras it was mentioned that the employees of the Population Planning Programme did not become civil servants unless they get clearance from the Federal Public Service Com mission, nevertheless it was never specifically held that this Tribunal had no jurisdiction to adjudicate on their appeals. A close reading of the judgment would show that the Supreme Court was of the view that the mere acceptance by the employees of the offer of appointment under the Federal Government did not confer on them the status of regular Govern fljent civil servants and their appointment was subject to such other con ditions as may be laid down by law and rules. In this respect, the following observation of the Supreme Court in para 15 is significant: "Their appointment, therefore, under the Population Planning Division was upon their express acceptance of the terms and con ditions mentioned in that letter. The appointment so made was on a temporary basis and what is important "subject to such changes as may. become necessary and are effected as a result of the new structure and organisatipa which the Government may \ sanction for the Population Planning Programme". 11. The above observation made in the judgment, in dor view, it to the effect that the employees of the Population Planning Programme before clearance from the hcderal Public Strvice Commission were temporary employees, and as such, temporary civil servants, and their service could be regularised by such law and rules which may be made henceforth. This, Tribunal has jurisdiction in respect of civil servants whether ad-hoc, temporary or regular. The appellant, in our opinion, before clearance from the Commission was a temporary or ad-hoc civil servant and he could become a regular civil servant under the 1981 Ordinance only if he got clearance from the Commission thereunder. Since our jurisdiction, as already observed, extends to ad-hoc and temporary civil servants as w ell,j we have every jurisdiction to entertain this appeal. 12. Our above view is further strengthened by the facts that in para 21 of the judgment of the Supreme Court, the appeal of Or. Fakhar-un-Nisa Javaid wa» rejected and the decision of the Tribunal dismissing her appeal was upheld. This c.early shows that the decision of the Tribunal could be upheld only if the Tribunal had jurisdiction to entertain the appeal. 13. It has been pointed out and we agree that the question of jurisdic tion of the Service Tribunal was not specifically discussed by the Supreme Court in their judgment, for in a subsequent Civil Petition No. $9-11/84, leave to appeal was allowed to consider this very question. 14. The learned counsel for the appellant referred to certain other cues decided by the Tribunal, wherein the majority view was that fter the ffer of appointment and acceptance by the Government, the employees of the Population Planning Programme became civil servants, was Upheld by the upreme Court. However, since the matter is stiil under considera tion with the Supreme Court, we arc of the view that our finding in the. case of Rial Ahmad Baig. v. Secretary, Population Planning DivfeiM, that this Tribunal has jurisdiction to entertain the appeal still holds the field. The net result of our discussion above is that we hold that the appellant at the relevant time was a temporary or ad hoc civil servant, subject to our jurisdiction. The appeal should now come up for hearing on merits in) due coures. 15. Parties to be informed. (TQM) Order accordingly.
PLJ 1985 Tr, c7(Ser PLJ 1985 Tr, c7(Ser?ices) 173 [Federal Service Tribunal, Islamabad ] Before'. justice shah abdur rashid, chair an & A, O. rahur rbhman, member MUHAMMAD JANAppellant versus CHAIRMAN, WAPOA, Lahore and OthersRespondents Appeal No. 92 (P) of 1982, decided on 12-9-1983. (i) Service Tribunals Act, 1973 (LXX of 1973)-
S.4 read with Water & Power Development Authority Act, 1958 (W. P. Act XXXI of 1958)-~S,17(1B) and Employee! of Water Power Development Authority (Allocation to Provinces) Order, 1979 (P. O. 4 of 1979)Art. 2WAPDAPersons on deputation toGrievance ofService TribunalAppeal toCompetency of Appellant on deputation to WAPDA from NWFP sanctioned LPR and relieved from duty despite bis having sought withdrawal of prayer for LPR by another applicationHeld : Appellant being employee of NWFP, his appeal before Federal Service Tribunal to be dismissed for want of jurisdictions. [P. 1751/4 & 5 PLJ 1981 S.C. 2S9re/. (ii) Employees of Water & Power Development Authority (Allocation to Provinces) Order, »97» (P. O. 4 of 1979)- Art, 2See : Service Tribunals Act, 1973 (LXX of 1973)S. 4 [P. 175] A &B (Hi) Water & Power Development Authority Act, 1958 (W. P. Act XXXI of 1958)- S.17 (IB)See : Service Tribunals Act, 1973 (LXX of 1973)-S. 4 . , [P. 17SM S Syed Rahman, Advocate for Appellant. Mr. Anwar H. Mir, Advocate for WAPDA. Date of hearing ; 4-9-1983. (H) Employees of Water & Power Development Authority (Allocation to Provinces) Order, I97» (P. O. 4 of 1979) -Art, 2See : Service Tribunals Act, 1973 (LXX of 1973)S. 4 [P. 175] A & B (iii) Water & Power Development Authority Act, 1958 (W. P. Act XXXI of 1958)- ~-S.17 (IB)-S«e : Service Tribunals Act, 1973 (LXX of 1973)-S. 4 [P. 175[ Syed Rahman, Advocate for Appellant Mr. Anwar H. Mir, Advocate for WAPDA. Date of hearing ; 4-9-1983. judgment Justice Shah Abdnr Rashid, Chairman.The appellant was originally an employee of the Electricity Department of NWFP. On the establishment of the Water and Power Development Authority (WAPDA) under the Water and Power Development Authority Act (W P. Act No. XXXI of 1958), be was required to serve the WAPDA in accordance with first prviso to sub-section (1) of section 17 of the WAPDA Act. He applied for leave preparatory to retirement (LPR) on 19 2-1931, but before he could receive an order on his application, he sought to withdraw bis prayer for LPR by another application dated 20-5-1 >81. Despite that, the appellant was sanctioned LPR, and was relieved from duties with effect from 15-8-1981. The appellant, after exhausting the departmental remedy, has approached this Tribunal by way of appeal under section 4 of the Service Tribunals Act (LXX of 1973). 2. The learned counsel for respondent WAPDA has raised prelimi nary objection with regard to the jurisdiction of the Tribunal to entertain the appeal. He has argued that the appellant being on deputation from NWFP to WAPDA, never acquired the status of a civil servant so as to entitle him to invoke the jurisdiction of the Tribunal. 3. The status of civil servant is conferred on the persons holding a post under the WAPDA by sub-section (IB) of section 17 of the WAPDA Act. The said sub-section reads as follows : (IB) : Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. The learned counsel for WAPDA has argued that since the appellant was on deputation from NWFP to ths WAPDA, he was not a civil servant for the purposes of the Service Tribunals Act (LXX of 1973). 4. The learned counsel for the appellant has relied on the case of AH Akhtar Sohiil v. Oniruun, WAPDA and another [1983 PLC (C.S.) 343], where in para. 14, a Bench of the Tribunal has indirectly admitted the status of a person ptacsd in a similar situation to be a civil servant. However, when the aforesaid case was argued before the Tribunal. Its attention had not been drawn to the Supreme Court decision in the case of Jehanzeb Khan v. Water and Power Development Authority (PLJ 1981 S C 289). in that case also, Jehanzeb Khan was an employee of the NWFP and was serving under the Authority. He was retired f om service under section 17(1 A) of the WAPDA Act. He approached this Tribunal which refused jurisdiction by observing as follows : "Not being a civil servant, as defined in. section 2(6)(/) of the Civil Servants Act,'1973 read with section 2(a) of the Service Tribunals Act, 1973, and the fact that section 17 (l-B) of Act LXXXIV of 1975 does not include a person on deputation to the Authority from any Province, the petition is not entertainable under section 4(1) of the Service Tribunals Act 1973. /ehanzeb Khan went to the NWFP Service Tribunal, but that Tribunal too refused to exercise jurisdiction. In appeal, the Supreme Court observed that Jehanzeb was to pursue his remidy before the N\VFP Service Tribunal as a civil servant of that Province under the NWFP Service Tribunal Act. 1974. 'MB 5. The matter, in view of the aforesaid decision of the Supreme Court, stands finally decided. However, it may be mentioned that Article 2 f the Province of West Pakistan (Dissolution) Order, 1970 (P. O. No. 1 of 1970) may betaken to give the impression that the emoloyees of he Provinces who were on deputation to the WAPDA became civil servants under the Federation. A bare reading of Article 42 ibid would show that no oubt the power of the Provincial Government in respect of WAPDA and its employees is to be exercised by the President, nevertheless, it nowhere provides that the ersons who are on deputation from the Provinces to the WAPDA would become civil servants under the Federation. In fact, in 1979 the Employees of the Water nd ower Development Authority Allocation to Provinces) Order, 1979 (P. O. No 4 of 1979) was promulgated, and by virtu: of Article 2 thereof, the employees who, before'the dissolution of the Province of West Pakistan, were employees of that Province, were re-allocated to the Provinces to which they belonged, ither by virtue of their oermanent residences. The appellant thus became an employee of the NWFP. 6. In view of the above facts, therefore, we uphold th objection; raised by the respondent WAPDA, and dismiss this appeal for want o jurisdiction, leaving the parties to bear their own costs 7. Parties to be informed.
PLJ1985 Tr PLJ1985 Tr. C. (Services) 176 [Federal Service Tribunal, Islamabad ] Before \ muhammad irshad khan & S. A. sayood, members ABDUL MAJID-Appellant versus GARRISON ENGINEER, EAST, Rawalpindi and OthersRespondents Appeal No. 170 (R) of 1984, decided on 6-6-1985. (i) CITY SERVISE - Locus poenitentiae Principle ofApplicabilityPay of appellant duly fixed in NPS 11 in 1976 paid to him for about seven years HeM : Departmental'authorities to have no valid power of receding order of fixation of appellant's pay in NPS 11 (by refixing pay in NPS 7 in 1983). [P. 177&178[fi (tt) Local Poenitentiae Principle ofApplicability ofHeld : Public authority competent to pass order (also) to be empowered to vary, amend or resind that order Such power to.fecede, however, to be exercised only till decisive step be takenOrder already acted uponHeld : Power to amend or cancel same not to be carried into effect. [P. m\A Mr. Muhammad Ikram Chmdhry, Advocate for Appellant. Sardar Muhammad Amir Akbar Khan, Counsel for Respondents. Date of hearing : 412-1984. judgment Mohammad Irshad Khao, Member.The relevant back-ground of the present appeal is that on his promotion as Draftsman Class B, the pay of the appellant was fixed in Grade 11 with effect from 13-5-1976. In November, 1983, however, Respondent No. 2 wrote to Respondent No. 1 that the appellant's pay was wrongly fixed in NPS 11 and, therefore, it was revised and refixed in NPS 7. Feeling aggrieved thereby the appellant represented departmeritally and when received no reply he knocked at our doors for,relief. 2. It is the case of the appellant that his pay was rightly fixed in .NPS II and the action Of the respondent refixiflg his pay in NPS 7 is illegal and without jurisdictfon. The stand taken by the Respondent-Department is that only such posts for which direct entry qualification is matric with 'three years Diploma, Course: in any branch of Engineering, were allowed NPS 11 with effect from 1-5-1974 while under the recruitment rules in the Military Engineering Service direct entry qualification for Draftsman, Class B. working in MES is matric with certificate in draftsmanship. In spite of this the pay of the appellant was wrongly fixed in NPS 11 by the CMA, Karachi , by misapreciating the Government letter dated 8-5-1974. The error was later on discovered and the Military Accountant General, Rawalpindi , verified that under the Government letter dated 8-5-1974 the Draftsmen, Class B, of the MES are not entitled to NPS 11. Accordingly the mistake occurred in the case of the appellant was corrected and instructions were issued for bis reversion from NPS 11 to his entitled NPJ57, 3. We have given our anxious thoughts to the submissions made by the parties and carefully perused the relevant record. As said above, the stand of the Respondent-Department is that under the Rules Grade 11 can be allowed only to B-Class Drafstman working in the organization where direct entry qualification for the post is matric with diploma in draftsman ship, however, in MES the qualification for direct entry as B-Class Drafts man is matric with certificate in draftsman and, therefore, Grade 11 is not allowed to the B-Grade Draftsman in MES. The appellant has, however, relied upon the decision of the Department contained in their letter dated the 9th of March, 1977, which is reproduced below : "Subject : Qualification for Recruitment of Draftsmen in various Orgs and their Refixation of Pay in NPS, e: (a) Govt. of Pakistan , Min of Fin OM No. F. 1 (24) NG- Imp-II/73-284/7I dated 08th May, 74 (b) Finance Division (Regulation Wing) OM No. 340-R (II)/76- E-l (l)-NG-Imp-II/76 dt. 03rd May, 76. (c) Govt. of Pak. Fin Divn (Reg Wing) OM No. F-1 (l)-Nr- Imp-II/76-624-R (II)/76 dated 16-9-76, (1) Govt. letter mentioned at serial 'a' above allows grant of National Pay Scale to Engg. diploma holders and tech draftsmen employed under Federal Govt. (2) Govt. letter referred to in para 'b' above was relaxed and NPS 11 was allowed to those draftsmen recrui ted direct prior to 24 May-76 by compstent authority as draftsmen class 'B' without prescribed educational qualifica tions (in consideration perhaps of their practical experience etc.) (3) Promotees to the post of draftsmen class 'B' will also be granted NPS 11 w.e.f. 08-5-74, the date of issue of Govt. letter irrespective of their educational qulifications. (4) AH formations are, therefore, advised to initiate and review all cases in consultation with CMA's con cerned," 4. It is clear that by the above decision NPS 11 was allowed in all the formations to the promotees to the post of the draftsmen, Class B, irrespective of their educational qualifications, Therefore, there appears force in the contention of the appellant that on his promotion as Draftsman Grade B he was entitled to NPS 11 regardless of direct entry qualification of the post. It could not be explained by the Respondent-Depart ment to our satisfaction why different scale of pay is given in the different formations Promoted Draftsmen, Class B. Be that as it may, however, it has been Iraid down by the superior Courts in a number of authoritative pronounce- . meents that a public authority which can pass an order is empowered tol ' vaey, amend or rescind that order. But this power to recede can be exercised' only till a decisive step is taken. If, however, the order has been given effect to, so that no locus poenitentiae is left, there will be no occasion for exercise of such power. Thus the power to amend or cancel an order cannot be carried Into effect if the order has been acted upon. In the present case the pay of the appellant was duly fixed in NSP 11 in 1976 which was being paid to turn for about seven years till it was refixed jn ! (Not Legible}. iNPS 11. Therefore, the departmental authorities had no valid power Jof receding the orders of fixation of the appellant's pay in NFS 11. We, (therefore, hold that the impugned order is, incompetent and unjust. 5. In the result the appeal is accepted, the impugned order is declared to be ineffectve, inoperative being incompetent, and is accordingly set aside. The appellant shall be entitled to the pay in NFS (now NFS 11) as originally fixed. There shall be no order as to costs. 6. Parties to be informed accordingly. Appeal accepted
PLJ 1985 Tr PLJ 1985 Tr. C. (Election) 178 [Election Tribunal, Pnojib, Lahore ] Before : justice nasir aslam zabid Dr. AON MUHAMMAD KHANAppellant versus , Shaikh IHSANUL HAQ P1RACHA and OthersRespondents .-,- Election Petition No. 4.1 of 1985 (Senate), decided on 13-7-1985. (t) Senate (Election) Act, 1975 (LI of 1975)-
Ss. 34 & 48 read with Houses of Parliament & Provincial Assem blies (Elections) Order, 1977 (P. O. 5 of 1977)-Art. 5 (1)Senate- Election to - echnocratsSpecial seats reserved forRespondent (No. 18) administering or managing at high level operational or policy-making units in Pakistan Army for eriod of about 14 years- All such positions and assignments having nexus with engineering in which field professional competence of respondent accorded national recognitionRespondent also having more than 10 years of requisite experience and expertise of administering or managing at high level operational and/or policy- aking units having nexus with logistics in which field also professional competence of respondent accorded national recognitionHeld: (Respondent No. 18 being echnocrat within meaning of Art. 5 of Houses of Parliament & Provincial Assemblies (Election) Order, 1977], election petition challenging his election to special eats reserved for Technocrats in Senate to fail. [Pp. 193, 194, 195 & 196JF, G, H,& J (ii) Homes of Parliament & Provincial Assemblies (Elections) Order, 177 (P. O. 5 of 1977) Art. 5(1) ExplanationProfessionalDefinition ofRespondent (No. 18) not holding any degree in engineering from any University- Diploma obtained by such respondent from Loughborough College of Technology, U.K. neither internationally recognized as engineering qualification nor listed in second schedule to Pakistan Engineering Council Act, 1976 (V of 1976)Respondent also not registered as profess'onal engineerEven examinations prescribed by Institute of Engineers not passed by himHeld; Certificate of honorary fellowship of Institution of Engineers alone not t& raise any inference regarding respondent possessing engineering qualifications nationally or inter nationally recognizedHeld farther : On basis of record of election petition, respondent to possess no nationally or internationally recognized professional engineering qualifications. [Pp. 190 & 191] A & B PLJ 1985 Tr. C. (Election) 98 re/. (iii) Homes of Parliament & Provincial Assemblies (Elections) Order, 19/7 (P. O. 5 of W77) -Art. 5(1) ExplanationTechnocratDefinition of Professional comoetence Recognition ofRespondent (No. 18) obtaining diploma in automobile engineering from Loughborough College of Technology U K. after completing regular 3 years course of study, granted Commission in Electrical & Mechanical Engineering Corps of Pakistan Army and remaining officer of such Corps till his retirement as Lieutenant-GeneralProfessional competence of such respondent in field of engineering also officially recognized by various official posts and assignments held by him in EME Corps of Army Held: There being official recognition of his professional competence in field of engineering, respondent (No. 18) to be person of nationally recognized competence in field of engineering. [Pp. 192 & 193JC&0
(lr) Homes of Parliament & Provincial Assemblies (Elections) Order, 1977 (P. O. 5 of 1977)
Art. 5(1) ExplanationTechnocratDefinition ofProfessional competenceRecognition of^-Held : Experience and expertise at high level for administering or managing operational or policymaking unit must have nexus with or be relatable to professional competence of candidate [in order to be covered within definition ot ''technocrat" given in Explanation to Art. 5 (1) of Order]- Held farther : Experience and expertise of 15 years after requisite recognition of professional competence of candidate being only relevant, any experience or expertise prior to date of recognition of his competence not to be counted. [P. 193]£ (?) Houses of Parliament & Provincial Assemblies (Election) Order, 1977 (P, O. 5 of 1V77)
Art. 5See : Senate
(Election) Act, 1975
(LI of 1975)Ss. 34
PLJ 1985 Tr PLJ 1985 Tr. C. (Services) 196 [Federal Service Tribunal, Islamabad ] Before : justice shah abdur rashid, chairman & S. A. sayood, member Syed MOHAMMAD WAJID ALI SHAHAppellant versus MANAGING DIR ECTOR (P), WAPDA, Lahore and Another Respondents Appeal No. 291 (R) of 1984, decided on 10-9-1985. ( i ) Service Tribunals Act, 1973 (LXX of 1973)- S 4 read with Water & Power Development Authority Act, 1958 (W P. Act XXXI of 1958)-S. 17 (I-B), Civil Servants Act, 1973 (LXX1 of 1973)-S. 22 and Limitation Act, 1908 (IX of 1908)-S 3- WAPDA employeeTermination of services of during probation pe riodAppeal againstLimitation Bar ofServices of employee of WAPDA terminated during period of probation allegedly on terms of his letter of appointment and rules applicable to his serviceHeld : Appellant having not been dismissed or removed from service under Efficiency & Discipline Rules which provided for departmental appeal, waiting period of 90 days (for filing appeal) under S. 4 of Service Tribunals Act, 1973 not to be applicableAppeal before Tribunal filed on 13-6-1984 to challenge order of 3-3-1984Even no application for condonation of delay filedHeld ; Appea ! to be clearly barred by timeHeld further : Emp!o
e« of WAPDA jwere terminated during the period of probation allegedly on the terms of jhis letter of appointment and tne rules applicable to his service. When confronted wjtb this fact, the learned counsel for the appellant argued that under section z2 of the Civil Servants Act, an aggrieved civil servant can avail of the opportunity of departmental appeal, representation or review even in the absence of specific provision in any rule. In these arguments, there is no substance because it is only the Service Tribunals Act which has been made applicable to the employees of the WAPDA. The employees of the WAPDA are not governed by the Civil Servants Act. The appeal is, theret e, clearly barred by time and the departmental appeal was an exercise in futility. There is no application for condonation of delay. We, therefore, without going into ths merits of the case, dismiss the appeal as barred by time, 5. Parties to be informed accordingly. (TQM) Appeal dismissed.
PL J 1985 Tr PL J 1985 Tr. C. (Services) 198 [Federal Service Tribunal, Islamabad ] Before : justice shah abour rashid, chairman & S. A. sayood, member KHALIL AK.HTARAppellant versus CHAIRMAN, WAPDA, Lahore and 3 OthersRespondents Appeal No. 749 (L) of 1982, decided on 21-8-1985. (i) Service Tribunals Act, 1973 (LXX of 1973)-
S 4 read with Limitation Act. 1908 (IX of 1908)Ss. 3, 5 & 14 Service TribunalAppeal toDelay in filing ofCondonation of Time spent in litigating in wrong forumExclusion ofAppellant spending about four years in litigating in Labour Courts and High Court-Held : Tribunal to be competent to condone such time spent in litigating in wrong forumsNo explanation, however, given for not filing appeal before Tribunal for about two months more Held : Appeal to be barred by time. [P. 201]C (ii) Industrial & Commercial Employment (Standing Ord ers) Ordinance, 168 (W.P. Ord : VI of 1 68) S 1 Proviso I read with Wnter and Power Development Authority Act, 1958 (W.P. Act XXXI of )9a8)S. 17 and WAPuA Employees (Efficiency & Discipline) Rules, 1978 -R. 8-WAPDAEmployment of officers and servants ofStanding Orders OrdinanceApplica bility of-Establishment of WA ( 'DA admittedly carried on under authority of Federal GovernmentHtld : Workmen (employed in WAPDA) like ail other employees of WAPDA being governed by Efficiency & Discipline Rules (made by WAPDA). Standing Orders Ordinance not to be applicable (so far as efficiency and discipline of such workmen be concerned). [P. 4. To challenge the orders of the Labour Appellate Tribunal, the reipondents went to High Court by way of writ petition. The said Court accepted the petition by order dated 9-10-82, on the ground the appellaat being a civil servant, neither the Labour Court nor the Labour Appellate Tribunal had jurisdiction to hear the appeals. 5. As a result of the decision of the High Court, the appellant was again removed from service by order dated i8-l!-82. In the appeal before us filed on 18-iz-s2, orders of termination of services of the appellant passed on 23-1 78, 1-1 79 and 18 U-82 have been challenged. 6. It was argued that the appellant being a workman was governed by 1968 Ordinance, and as such action could not be taken against him except on the ground and in accordance with the procedure la d down therein. Two decisions of this Tribunal are to the effect that no doubt the forum for adjudication on the grievance of workman employee of WAPDA is the Service Tribunal, nevertheless, action can be taken only if such misconduct, as defined in the 1963 Ordinance, is established and that too in accordance with the procedure laid down in the said Ordinance. Since we entertained some doubt about the correctness of these decision, we requested Mr. S Jamshed AH Advocate to act as amicus curias. We have heard the learned counsel for the appellant, the learned counsel for respondents and the amicus ctiriae, all of whom rendered valuable assis tance to us. 7. There can be no two opinions that if the WAPDA Employees (Efficiency and Discipline) Rules are applicable in the present case, then the appellant having been convicted to undergo imprisonment and suffer lashes by the Summary Military Court, his services could be terminated without notice or hearing under rule 13 of WAPDA Employees (Efficiency & Discipline Rules, 1975 or under rule 8 of WAPDA Employees (E&D) Rules, 1978, as the case may be. However, as already stated, the .- appellant's case is that he being a workman, action could be taken against ,-~ him only if the misconduct as defined in Para 15(3) of the Schedule to the 1968 Ordinance is established, and that too after following the procedure provided for therein The learned counsel for respondents as also the amicus curiae have drawn our attention to the first proviso to section 1 of 1968 Ordinance, which reads as follows : "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the ? f , authority .of the Federaj or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein". It canaot be denied that the WAPDA is very much an establishment which
s carried on under the authority of the Federal Government and as such the aforesaid proviso is strictly applicable. This being the case, the 1968 Ordinance, as far as Efficiency and Discipline is concerned, shall not be applicable to a workman of WAPDA. A workman like all other ^ employees of the WAPDA is governed by the Efficiency and Discipline .Rules made by the WAPDA, and since under these rules, power to tenai- "nate the services of a convicted person without notice is available to the competent authority, the orders of termination of service of the appellant passed on different dates are quite valid. scheme, ITO fell in error in re-opening assessment by taking resort to such circular. (Pp 203&204J/4&C (fi) Income-tax Ordinance, 1979 (XXXI of 1979)-
S 59- Self assessment scheme Circular curtailirg right of assessee Construction of Held : Circular curtailing right of assessee under self assessment scheme to be interpreted strictly and in such way that interpretation fa curing assessee to be only accepted (in case of two interpretations being possible). [P. 203)5 Mr. Mazhar-ul-Hassan, Advocate for Appellant. Mr. Muhammad Far id, Departmental Representative by Respondent. Date of hearing : 1612-1904. order Mr Mazhar-ul-Hassan, Advocate appearing for the appellant have vehemently contended that the ITO had no jurisdiction to re-open the assessment completed u/s«9(l) as Circular No. 32 of 198j dated 7th December, 1980 did not apply in his case. The brief facts giving rise to this appeal are that the appellant an individual earning bis income from tale of artificial jewellery, filed his return for assessment year 1980-81 under self assessment and the same was accepted u/s 59 (1) of the 1. T. Ordinance. However subsequently, the assessment was re-opened in view of Circular No. 32 of 1980 dated 7th December, 1980 The appel lant again filed bis return showing income at Rs. 20.990/- with total sales of Rs. 2,18,796 O. P. rate of 25.6% and G. P. of Rs. S6.728/-. The ITO however for various reasons given in his assessment order rejected the trading versions and estimated the sales at Rs. 3,/5,000/- and applied O. P. rate of 26%. The appellant felt aggrieved and went up in appeal. The learned A \Cvide his order dated 25th May, 1982 recorded in ITA No. AAC/E/K.E/1983/1980-81 confirmed the order of ITO. 2. Elaborating his argument Mr. M. H. Advocate submitted that clause 6 of Paragraph B of Circular No. 3/ of 1980 dated 7th December. 1980 dealt with cases of jewellery, goldsmith and bullion dealers and did not cover the case of dealer of artificial jewellery. According to learned counsel the appellant was dealer of artificial jewellery and was a retailer. When his attention was invited to memorandum of appeal and the order of thi learned AAC Mr. M .ul .H...Adv. submitted that the appellant had filed an affi-Uvit alongwith additional grounds of appeal in which the .question regarding the applicability of circular 32 of 1940 and invalidity of the notice issusd u/s 65 were taken. Ha also extensively argued against the various findings of the assessing officer recorded in his assessment order. However, I do not wish to dilate on them simply for the reason that the appeal may be disposed of merely on the legal grounds urged by the learned counsel for the appellant. 3. Mr. M...F...the learned Departmental Representative submitted that the word "jewellery" also included artificial jewellery in its meaning. Referring to Vallentine's Law Dictionary, 3rd Edition, Mr. M ..F...the learned D. R. argued that the word jewellery included all articles of personal adornment. As such according to learned DR tmmttatioq (interpretations are possible only the one which favours the assestec should be accepted. 6. Now turning to the facts of the case it appears that the appellant is admittedly a retailer of artificial jewellery. It further transpires from perusal of the record that 99% sales of the appellant were cash and below Rs. 1,000/-, This fact further lends support to my conclusion that the Circular No. 32 of 1980 was not meant for dealer of artificial jewellery. For the reasons given above 1 am of the view that the ITO fell in error in re-opening the assessment of the appellant by taking resort to Circular No. 32 of 1980. Sirce the case of the appellant was qualified to be accepted under self assessment scheme I, therefore, allow this appeal and by setting aside both the orders of the officers below direct to ITO to accept the return as filed by the appellant. Since the appeal has been disposed of on this legal point 1 refrain from dealing with the other aspects of the matter discussed in detail by ITO. The appeal stands disposed of accordingly. (TQM) Appeal allowed.